Tag Archives: Justice/Legal

“We had to put the Second Amendment over the First Amendment.” (7:21)

Yes, it’s common sense to credit the NRA for its involvement with the McDonald vs Chicago case and its fight for the Second Amendment, which, I think, would have been infringed upon even greater longer ago without the NRA.

However.

I don’t like what I’m seeing with the NRA on this – and their wish to protect the Second Amendment by way of seeking exemption under DISCLOSE is nullified if they traded exemption for silence on the hearing of an anti-gun Supreme Court nominee Elena Kagan as part of of the deal.

You can’t be non-partisan because the Second Amendment, in current society, is not a bipartisan issue.

By silencing yourself, ironically, on an issue for exemption so that you don’t have to be silenced later on is playing with the First Amendment whether you realize it or not.

I laid out the rest of my and your concerns in the interview. Whole show podcast available here, 6/28 first hour.

At long last the 2nd Amendment has been considered a personal right per the Supreme Court of the United States. In McDonald v the City of Chicago the Supreme Court has ruled in a 5 to 4 decision that Chicago’s gun banning laws are not in keeping with the right to self-defense as enshrined in the U.S. Constitution. After 200 some years we are finally accorded our rights officially. Further, the Court found that the 2nd Amendment was meant to protect the very people that Mayor Richard Daley and his comrades are trying to forcibly disarm: black Americans.

The decision threw out the Seventh Circuit ruling upholding Chicago’s gun ban and ordered the Seventh to revisit its decision. This new ruling does not specifically strike down Chicago’s gun ban but the opinion leaves little room for the Seventh to up hold Mayor Richard Daley’s gun banning efforts.

One of the main questions before the Court was whether or not the 14th Amendment served to shore up the rights in the 2nd. The Court found that it did, indeed. In fact, it is interesting to note that the ancestors of the very people that the 14th Amendment was meant to specifically protect — newly freed slaves, called freemen — are today those that Mayor Richard Daley and others like him want to disarm. Daley and his ilk want to disempower blacks and other minorities and tie them plantation-like to their government authority.

In the majority opinion in the McDonald decision specifically notes the history of the 14th Amendment and its preceding basis for being the protector of the freemen.

After the Civil War, many of the over 180,000 African Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks. The laws of some States formally prohibited African Americans from possessing firearms. For example, a Mississippi law provided that “no freed- man, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife.” (pg 23)

There was but one reason why freedmen were prohibited from having firearms and that was so that they would be unable to defend themselves against terrorists like the Klan or be able to enjoy the fruits of citizenship. Scalia notes that the Freedman’s Bureau began to add rules to its repertoire to specifically affirm the newly freed black’s right to self defense (pg 27).

Going on with the history of the post war freemen, the opinion of the court notes that during the debates for the 14th Amendment their rights to self-protection were considered sacrosanct. During debate, Senator Samuel Pomeroy (R, Kansas) described three “indispensable” “safeguards of liberty under our form of Government.” (pg 28)

“Every man… should have the right to bear arms for the defense of himself and family and his home- stead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the pol- luted wretch to another world, where his wretched- ness will forever remain complete.”

It is an outrage though that nearly 150 years after the great Civil War began to end the oppression of blacks in America mayors like Chicago’s Daley and Mike Bloomberg of New York want to take away the hard fought rights for which blacks in America suffered so long.

Another outrage is that four Justices of the Supreme Court of the United States have fallen to such tortured logic to excuse away their unconstitutional, modern stance quite despite all the rich, detailed history that has for so long affirmed the obvious truth that we as Americans have the right to self protection.

In fact, Scalia notes how illogical and ungrounded Justice Stevens’ dissenting opinion is. In essence, Stevens claims that as a judge he can declare the 2nd Amendment null and void just because he says so. There is no logical or historical basis for Stevens’ feeling that the 2nd Amendment is not an individual right but nonetheless Stevens thinks he sees a “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society” deep in the mists of a judge’s soul.

The absurdity of this is immediately evident, but Scalia lambastes the foolishness of this mystic claim in his concurring opinion.

He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences?

Justice Thomas similarly destroys the lack of logic of the left calling it a “legal fiction.”

The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, while the plurality makes yet another effort to impose principled restraints on its exercise. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.

These are biting commentary, for sure. But it does go to show the untenable, illogical, capricious basis upon which liberals base their thinking, not just in this case but in all their judicial and policy prescriptions. The McDonald case reveals the left’s lack of concern for the meaning of the law and also alarms for the fact that just one more unapologetically, anti-constitutional liberal on the court would tip us from a rule of law to the rule of elites and their situational ethics-based, ever shifting ideas.

From the Associated Press:

The Supreme Court held Monday that the Constitution’s Second Amendment restrains government’s ability to significantly limit “the right to keep and bear arms,” advancing a recent trend by the John Roberts-led bench to embrace gun rights.

By a narrow, 5-4 vote, the justices also signaled, however, that some limitations on the right could survive legal challenges.

Writing for the court in a case involving restrictive laws in Chicago and one of its suburbs, Justice Samuel Alito said that the Second Amendment right “applies equally to the federal government and the states.”

The court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and four liberals opposed. Chief Justice Roberts voted with the majority.

Two years ago, the court declared that the Second Amendment protects an individual’s right to possess guns, at least for purposes of self-defense in the home.

That ruling applied only to federal laws. It struck down a ban on handguns and a trigger lock requirement for other guns in the District of Columbia, a federal city with a unique legal standing. At the same time, the court was careful not to cast doubt on other regulations of firearms here.

Gun rights proponents almost immediately filed a federal lawsuit challenging gun control laws in Chicago and its suburb of Oak Park, Ill, where handguns have been banned for nearly 30 years. The Brady Center to Prevent Gun Violence says those laws appear to be the last two remaining outright bans.

Lower federal courts upheld the two laws, noting that judges on those benches were bound by Supreme Court precedent and that it would be up to the high court justices to ultimately rule on the true reach of the Second Amendment.

The Supreme Court already has said that most of the guarantees in the Bill of Rights serve as a check on state and local, as well as federal, laws.

Monday’s decision did not explicitly strike down the Chicago area laws, ordering a federal appeals court to reconsider its ruling. But it left little doubt that they would eventually fall.

Continue reading here.

From Reuters:

Republicans have questioned whether Kagan, a former Harvard law school dean who has served in the past two Democratic administrations, is driven more by politics than law.

Democratic backers call the 50-year-old nominee, who last week received the American Bar Association’s top rating, a perfect fit for the highest U.S. court.

Obama has faced a Republican wall of opposition this election year on issues like healthcare, climate change and immigration.

But barring unforeseen bombshells at the hearing, at least a few members of the opposition party are expected to join Democrats and confirm Kagan to replace retiring Justice John Paul Stevens, the court’s leading liberal.

“She will be confirmed,” Democratic Senate Judiciary Committee Chairman Patrick Leahy, who will preside over the hearing, told ABC’s “Good Morning America” on Monday.

“How many votes I don’t know (but) she will get a whole lot of votes,” Leahy added.

Senator Jeff Sessions, the committee’s top Republican, offered no such predictions. “A lot of that depends on how this hearing goes,” said Sessions, who appeared with Leahy.

On Sunday, Sessions said, “This is a confirmation, not a coronation … She has the least experience of any nominee at least in the last 50 years.”

Continue reading here. The National Rifle Association is apparently sitting this one out. The organization recently sent a letter to its board, prohibiting any of them from testifying on Kagan’s Second Amendment views. This comes suspiciously soon after it cut a deal with Democrats to exempt itself from the DISCLOSE Act.

Actor Jimmy Smits, Obama’s Secretary of Labor Hilda Solis, and co-founder of the United Farm Workers of America union and Democratic Socialists of America member Dolores Huerta have recorded Public Service Announcements (PSAs) for the U.S. Department of Labor (DOL) directed at workers “documented or not.”

In the video, the three DOL spokespersons announce the Department’s selective enforcement of U.S. laws as they explain that DOL intends to use its resources for both “documented” and “not” documented workers.  But, the real plan is to force all workers to pay union fees as a condition of employment.

U.S. Labor Sec. Hilda Solis’ 30-second script:

I’m U.S. Secretary of Labor Hilda Solis, and it is a serious problem when workers in this country are not being paid every cent they earned.

Remember every worker in America has the right to be paid fairly whether documented or not.

So call us it is free and confidential at 1-866-487-9243

We can help.

Here is how this works.   Undocumented workers call the DOL hot line and say that they are being unfairly paid by Employer X.  Armed with this information, DOL investigators call Employer X and say they have evidence that Employer X has hired so-called undocumented workers and that it may have wage violations. The DOL investigators suggest that some type of remediation needs to occur, and then DOL will likely offer a list of options, any combination of which may be used:  multiple substantial fines, U.S. Immigration and Customs Enforcement (ICE) investigation, Wage & Hour investigation, IRS audit, and possibly imposition of a union contract to help prevent future calls from DOL.

The last option may be used as an escape clause to prevent investigations and/or fines.   (During the 1990’s when the Clinton Administration ran DOL, an employer was promised that the Wage & Hour investigation, NLRB charges, and other issues would go away if he signed a contract with SEIU.  Eventually, this led to a dismissal of one high ranking Clinton appointee after an inspector general investigation and a congressional investigation.)

This is another step in the Obama Administration’s continuing shakedown of employers in an attempt to entice them into agreeing to force their employees into unions.

With the legal costs associated with multiple federal agency investigations and the risks of heavy fines, Employer X could be forced out of business.  Under these conditions, Employer X might begin to believe that sacrificing his workers’ rights and forcing them into a union is an option worth taking.

Why should we suspect the Obama Administration’s involvement in this type of shakedown?  Besides the fact that the Wage & Hour Division was used by the Clinton Administration in an attempt to force unions upon employers in the past, there is more recent evidence that indicates that this is occurring now:

• In a November 2008 e-mail, ACORN outlined a special project, or shakedown operation,  comprised of SEIU, UFCW, AFSCME, Teamsters, and the Building Trades unions along with “Legal Aid, NELP, Greater Boston Legal Services” and “dirty money hungry lawyers to suck every dollar out of the employers.”  ACORN’s Ross Fitzgeraldreferred to it as Wage and Hour Centers.  (note: DOL’s Wage and Hour Division put together the Smits, Solis, and Huerta PSAs above.)*
• Quoting the ACORN e-mail: “We see it as a useful tool for [ACORN] offices to have, and bring to different Unions and pitch partnerships that use the Wage and hour center in a way that fits the unions organizing targets. We see this as the only way to get to the informal sector in an EFCA scenario.”   Later the memo refers to this plan as the ACORN — Worker Justice Center concept.
• According to the ACORN memo, SEIU, a substantial Obama political supporter, was eager to get this program off the ground: “Houston, Dallas – SEIU Local 1 has asked if we can specifically target janitorial contractors for litigation in the Dallas and Houston markets. This will be a contract that can hopefully lead to a recognition affiliation and shared dues arrangement.”  Click here to read the e-mails.
• In New York, ACORN was not needed to organize the harassment and shakedown of employers and employees because NY taxpayers funded the operation under the direction of Patricia Smith and Lorelei Boylan through a program called NY Wage Watch that provided a similar service to the one outlined in the ACORN email. Rather than tracking down “money hungry lawyers,” Smith used the power of the state of New York to shakedown employers – much more efficient in terms of costs and time than the ACORN plan.
• Now, Boylan (Wage & Hour Administrator) and Smith (Solicitor of Labor) are in the U.S. DOL and have created a nationwide federal program  like  NY Wage Watch that is running full steam ahead.  DOL likely has targeted employees unencumbered by forced unionism in every significantly sized city in America.
• Wage & Hour whistleblowers have let it leak that they have been ordered to give tips from union officials priority.

These DOL videos provide another peek inside DOL under the Obama Administration.  Sec. Solis and her forced unionism allies intend to use the power of the federal government to force documented and undocumented workers to expand the ranks of SEIU and other unions at the cost of individual worker freedom and choice.  Congress should defund these forced unionism programs; stop Sec. Solis from using the Wage & Hour Division to intimidate workers; and specifically exclude payments to or contracts with unions as a condition of settlement or negotiation with an employer.

* ACORN=Association of Community Organizations for Reform Now; SEIU=Service Employees International Union;  UFCW=United Food & Commercial Workers Union;  AFSCME=American Federation of State, County and Municipal Employees; Teamsters=International Brotherhood of Teamsters union; Building Trades=AFL-CIO Building Trades Organizations;  NELP=National Employment Law Project

The Little Pink House that changed America still stands strong.

Five years ago this week, the U.S. Supreme Court issued what would soon become one of the most despised decisions in its history.  In a controversial 5-4 opinion, the Court ruled in Kelo v. City of New London that governments could take your home—or business, farm or church—and hand it over to another private individual, provided the new owner promised to generate more tax revenue with your property.

The Institute for Justice, the libertarian public interest law firm that litigated Kelo and cases like it around the country, just released this video announcing that, while they lost the Kelo battle, they are winning the eminent domain war:

Simply put, the backlash to Kelo has been unprecedented.  In the past five years:

• 9 state high courts have limited eminent domain powers
• 43 state legislatures have passed greater property rights protections
• 44 eminent domain abuse projects have been defeated by grassroots activists
• 88 percent of the public now believe that property rights are as important as free speech and freedom of religion

The U.S. Supreme Court typically leads the state courts, which usually adopt its rulings and interpret state laws in a similar manner.  But with Kelo, the exact opposite happened.  In January 2006, the Ohio Supreme Court ruled unanimously to reject the Supreme Court’s eminent domain analysis. The Oklahoma and South Dakota supreme courts soon followed in expressly rejecting the high court decision.  So far, Kelo has prompted nine state high courts to limit eminent domain powers.

The legislative response was also historic.  43 states have enacted statutory reforms or passed constitutional amendments to guarantee greater property rights protection.  35 state reforms include prohibitions against taking property for economic development.  And 22 states made it much more difficult to bulldoze homes in the name of bogus blight.  For detailed look at all 50 states, see the Castle Coalition’s 50 State Report Card.

Perhaps most importantly, the general public let their voices be heard.   Not long ago, eminent domain was a funny sounding legal term that few people knew about.  The Kelo decision sparked an explosion of outrage all across the country.  Americans took to the streets, the air-waves, townhalls, newspapers and the blogosphere to stand up for private property.  Grassroots activists nationwide proved time and again that you can fight city hall and win.  At least 44 eminent domain abuse projects have been defeated by citizen activists post-Kelo.    Over 1,000 community leaders have attended workshops to learn how to successfully fight for their private property rights.

Americans of all political affiliations and backgrounds have joined together to voice their overwhelming opposition to eminent domain abuse.  A recent survey by the Associated Press showed that 75 percent oppose property being taken by government and handed over to private developers; 87 percent oppose eminent domain for redevelopment and 88 percent believe that property rights are just as important as free speech and freedom of religion.

Of course, IJ recognizes that the fight is not over.  Just yesterday, New York’s highest court paved the way for a massive eminent domain abuse project.  A short report titled Five Years After Kelo states that, “challenging work remains to be done in fighting eminent domain abuse.  Weak state reforms must be strengthened.  Moreover, property owners must be vigilant.”

And for the Little Pink House that started it all?

Susette Kelo’s entire neighborhood was bulldozed to make way for the private development project.  75 homes and several businesses were destroyed.  Over $80 million in taxpayer dollars were funneled into the redevelopment project.  And yet, there’s still no construction.  The property sits vacant.  The local paper ran a story, Feral Cats Ignore Eminent Domain, explaining that the only residents of the empty field are cats and birds.

The Kelo cottage was purchased by a preservationist and moved to a neighborhood a mile away, safe from the wrecking ball.    The Little Pink House stands strong and safe, serving as a monument to private property rights and an important reminder that a small group of people committed to a powerful cause can indeed make the world a better place.

A federal judge has, for the moment, spared already-suffering Gulf state residents from the brunt of President Obama’s most recent anti-energy Power Grab. It has enjoined the administration from implementing its moratorium on deepwater drilling. The Order is here, and the Opinion here.

The administration has vowed to appeal. Regardless of the outcome, this victory is temporary. As I detail in Power Grab: How Obama’s Green Policies Will Steal Your Freedom and Bankrupt America, Obama and his administration are committed to strangling domestic energy production. At the same time they promise to also clamp down on the cost of consumption, all in a way that makes our last energy-poverty president, Jimmy Carter, appear a free-market pioneer.

This was telegraphed immediately after Obama’s inauguration by his by administration revoking massive tracts of public land from possible lease for domestic energy production, even to the point of suspending lease agreements already struck.

None of this is either accident or coincidence, but affirmed as a deliberate plan by Obama’s concurrent clamp-down on families’ access to energy with a cap-and-trade scheme he vowed would cause energy prices to “necessarily skyrocket”. Though he dared not speak the scheme’s name, Obama renewed his support for it in his Oval Office speech last Tuesday by praising the House-passed bill.

Then, he also restated his threat of imposing central planning in the guise of the state engineering a “green economy”. Although last week he also suddenly dropped reference to his specific European models – because those countries like Spain have now admitted the devastation they caused, after his praise brought scrutiny – we know that even Europe has refused to ban production of domestic energy resources.

From the moratorium blocked by a federal judge today, pending appeal by Obama, to the planned “lame-duck” Congress-wide passage of the “cap-and-trade” energy tax, Obama is affirming all that he telegraphed and which is laid out in detail in Power Grab.

If the First Amendment protects anything, it protects the right of all Americans to speak to one another about politics without first having to register with the government.  Unfortunately, ever-increasing layers of red tape and regulation are strangling the political speech and participation of more Americans while offering little or no benefit to the public.

One of the most pernicious attacks on the basic First Amendment rights to speak, associate and petition the government are so-called grassroots lobbying laws.  (For an overview of these laws and what makes them so bad, watch this brief video:  http://ij.org/ 3368.)  But what bureaucrats and campaign finance reformers call “grassroots lobbying” is nothing more than one of the most basic acts of self-governance:  citizens discussing issues of public importance among themselves.

As many as 36 states impose heavy burdens on grassroots political activism—burdens that discourage citizens from even bothering to participate in the political process.

For example, in Washington state, if you get together with a couple of friends and create an informal group to encourage others to contact their legislators and oppose more taxes, the government forces you to register and report the name, address, business and occupation of each of the group’s organizers, as well as the names and addresses of anyone with whom the group is working to spread its message.  The state also demands to know the names and addresses of each person who contributes as little as $25 to your efforts.  After the government collects this information, it makes your personal information and political activities available to anyone with a computer and access to the Internet.

Spending $500 in one month or $1,000 in three months—a couple of trips to Kinko’s to print flyers or hosting one community barbeque—will trigger the registration and reporting requirements of the law.

Put simply:  A citizen who spends even relatively minor amounts of money communicating with fellow citizens must register with, and provide information to, the government regardless of whether elected officials are ever reached by the efforts.

In Washington, failure to register can lead to an investigation, significant penalties (including treble damages, the costs of the investigation and the government’s attorney’s fees), and a revocation of the ability to engage in any political activity that might qualify as “grassroots lobbying.”

Other states back up their regulations with criminal penalties.  In New York, for example, the maximum criminal penalty for violating the grassroots lobbying law is $5,000 and four years in jail—the same maximum penalty as for arson or rioting.  In Alabama, the maximum penalty is $30,000 and 20 years in jail—equivalent to the maximum penalty for kidnapping under state law.

The effect of laws like Washington’s is that many grassroots organizations simply forego speaking because the burdens of disclosure are so high and the costs of incorrectly reporting so steep.  Average citizens are effectively shut out of the political process.  This is unacceptable under the First Amendment, which unreservedly protects political speech.

It does not look like this ominous threat to free speech will recede anytime soon—instead, it appears to be on the rise.

In 2007, the U.S. Senate considered adding a grassroots lobbying registration requirement to an existing federal lobbyist disclosure law.  The provision was supported by campaign finance “reformers,” who promoted it as a means to “increase transparency and provide a more accurate record of paid lobbying actions in Congress.”

A number of groups, however, successfully persuaded Congress that such a measure would be unconstitutional, and the Senate dropped the provision from the final bill.

But now, with the rise of the Tea Party movement as well as strong grassroots efforts both for and against President Obama’s health care reforms, there is a new push among the political elite and their campaign finance reform allies to regulate grassroots lobbying at the federal level.

The real irony of these so-called “lobbying” laws is that our nation’s history is replete with examples of anonymous grassroots speech and activism challenging the status quo and urging political change, beginning with the Federalist Papers.  Disclosure laws like Washington’s could have stopped many initially unpopular but vitally important movements from ever starting.

Grassroots lobbying laws are nothing more than the government’s attempt to monitor, collect and disseminate information about the political activities of private citizens—something the government has no business doing in America.

There’s an old joke about a Transylvanian cookbook. The recipe for an omelet starts off with this: “First, steal two eggs.” If that note really appeared in some country’s cookbook, don’t look for constitutional government or a free market system to arise there anytime soon. That’s because democracy is not something you can just plant, like shaking seeds out of an envelope.

Americans were blessed to have extensive experience of self-government when we made our bid for independence in the 1770s. And Americans at that time–all the most thoughtful ones at least–recognized the profound contradiction that human bondage represented. It was difficult to assert on the one hand that all government “derives its just powers from the consent of the governed” while holding millions of human beings as slaves. Amid many blessings, slavery was held to be a curse. It took another eighty years and fratricidal Civil War before those contradictions were resolved.

A free market can do many things efficiently and justly, but the free market is perverted when it treats humans as objects. Thus, almost all people recognize that slavery and international sex trafficking are wrong. Our laws protect artistic expression, but we demand strict enforcement of laws against child pornography. Such illicit trade cannot be honored as a part of legitimate commerce.

We already know something of the unusual ideas of human rights and commerce held by U.S. Solicitor General, Elena Kagan. Kagan has been nominated by President Obama to succeed the retiring Justice John Paul Stevens. Kagan also served in the Clinton White House, where she left an extensive paper trail of documented opinions.

Most interesting, perhaps, is Kagan’s support for cloning human beings. Clinton Library documents show that she opposed any effort by Congress to prevent human beings from being cloned specifically to create embryos that would be experimented upon, then killed. Gallup recently reported that 88% of Americans oppose cloning human beings. Kagan does not.

We also know, from her record as Solicitor General in the Obama administration, that there are circumstances in which Elena Kagan would vote to ban political books. President Obama famously attacked the Supreme Court–while its members sat robed before him–during his first State of the Union Address last January. He attacked the Court for its ruling in the case of Citizens United v. Federal Election Commission. The President said, incorrectly, that that ruling permitted corporations to contribute directly to political campaigns and would allow foreigners to come in and influence our elections.

What the Citizens United case did say was that unions and companies, and non-profit associations, do not lose their First Amendment rights to speak on public issues just because an election is less than sixty days away. In fact, the Supreme Court found, during election campaigns was the very time when political communication among citizens was most important.

At issue was a film produced by Citizens United that attacked the public record of Hillary Clinton. The McCain-Feingold law says that such communications are unlawful contributions.

Kagan was asked if, instead of making a movie, Citizens United had published a book criticizing Hillary Clinton and it hit the stands less than sixty days before an election? Could the government ban that book? Yes, she said, representing the Obama administration. Ed Whelan, writing for National Review Online, pointed to the bizarre consequences of Kagan’s reasoning:

As Chief Justice Roberts pointed out, the theory of the First Amendment advocated by Kagan on behalf of the Obama administration “would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations—as the major ones are.”

Here we can clearly see that the kind of disregard for human rights Kagan denied in her advocacy of cloning human beings extends to property rights and to suppression of free speech. All our Bill of Rights guarantees–including freedom of speech and assembly–can only be safe in a constitutional order that respects human life. We must stand for free markets, but those free markets themselves are supported by respect for those inalienable rights with which we are endowed by our Creator. When those rights are denied by government, destructive forces are unleashed against free markets as well.

Broken today at Breitbart.TV:

From speech at Case Western Reserve, 1997: “I loved what happened in the Bork hearings. I wrote a review of Stephen Carter’s book recently where I said, ‘no, he has it all wrong. The Bork hearings were great, the Bork hearings were educational. The Bork hearings were the best thing that ever happened to Constitutional Democracy.’”

The Constitution of the United States of America is a remarkable document.  It is eloquent in its simplicity, clarity and in its power.  It revolutionized (first in America, and then throughout most of the western world) the relationship between those who are governed and those who govern.  It has served as a governing template for much of the democratic western world.

Every federal office holder swears allegiance to the Constitution, not to any leader, not to any party, not to any political philosophy—only to this document, which is the foundation upon which our form of government is based and against which all legislation and judicial actions are measured.  The President vows to do his job faithfully and, to the best of his ability, to preserve, protect, and defend the Constitution of the United States.

And while there is no way of divining what today’s crop of leaders would have thought of the Constitution had they been present at the founding when it was first circulated prior to ratification, we have our doubts whether many of today’s ruling class, including President Obama, would have found common cause with Washington, Adams (John), Jefferson, Franklin, Madison, Hamilton or Jay, all of whom loomed so large on the emerging American landscape.

This speculation is not intended as criticism of our political leadership or of the president.  Many great American patriots who were present at the founding opposed ratification of the Constitution.  Indeed, such American icons as Patrick Henry, Samuel Adams, John Hancock, George Mason and James Monroe, were resolutely opposed to ratification of the Constitution, so wary were they of concentrated federal power. Time has, of course, demonstrated the remarkable wisdom of those who fought for ratification and the value of the gift they bequeathed to us all.  The question raised by this essay, however, is posed as the basis for discussion of whether a document written so long ago, which lays out with simplicity certain fundamental rules and relationships, can truly guide this nation 221 years later.

And while we can’t know for sure how any politician holding office today would have voted had they been in a position to support or to oppose ratification of the constitution, we pretty well can determine whether the political views they hold today are consistent with the views of those founders whose genius produced it.  Let us, again, reiterate that support of, or opposition to, the Constitution at the time of its ratification was not an indication of one’s patriotism or love of country.   Those who drafted it also anticipated that it might have to be changed from time to time and provided an elaborate, albeit cumbersome, procedure for doing just that and, in fact, it has been amended twenty-seven times, with the first ten amendments literally a condition of ratification.

George Washington, who was a strong proponent of ratification and without whose support, ratification would have been impossible, nonetheless, faced severe constitutional crises during his very first administration.  One would think that determining the intent of its original drafters would have been pretty easy back then.  After all, the original drafters were all right there. All one needed to do was just ask.  Not so.  While they were all there, they didn’t all necessarily agree on what each of them intended in each sentence, section or Article.  They, of course, anticipated that there would be constitutional disputes and thus they constructed an independent and co-equal judicial branch, the pinnacle of which is our Supreme Court.

However, even the Article establishing the judiciary was not universally accepted by all the founders as giving the judicial branch the power to be arbiter of the meaning of the Constitution.  It wasn’t until the landmark case of Marbury v. Madison in which the concept of judicial review was established, or the Supreme Court labeled a Congressional act to be “unconstitutional.”

Washington also faced Supreme Court contests over his right to remove cabinet officers, the Jay Treaty, which formally ended the war with Great Britain and, arguably, whether or not the federal government had the right to send federal troops to put down a domestic rebellion.  Yes, we had a rebellion within the United States during the first Washington administration (“The Whiskey Rebellion”) and we did, indeed, send in federal troops to quell the insurrectionists.  .

But there was one principle about which there were no controversies at the founding.   Americans would be the freest people on the face of the earth, free in particular of undue government interference in their lives.  They would live in the world’s first meritocracy and they would be free to make their own choices about their political preferences and their economic pursuits. And while it would take close to a century before the young country would finally throw off the yoke of slavery, an institution that had long predated the founding, American citizenship represented a bold new experiment in human progress.

What was it, exactly, that launched this new phenomenon…a nation of free men, free to choose their own destiny…this catalyst that transformed a confederation of varied individuals with varied interests, skills and intellect living in separate states that zealously guarded their individual sovereignty into the greatest engine for progress and wealth generation the world had (or has) ever seen? The question answers itself.  It was the Constitution and the fidelity to it of the founding generation and the generations of American leaders who have followed.  It is the great balancing of limited and enumerated central government power, with the rights of the individual states that comprised the United States of America and, most importantly, the rights of individuals to live their lives largely free from governmental intrusions by either the state or federal governments..

This raises a question well worth pondering.  Should America expect its political leaders to embrace the aspirations of the founders?  After over 200 years with our form of governance the world is greatly changed.  Forms of transportation, communication and commerce between and among citizens, the several states and foreign nations which, while commonplace now, were non-existent in 1789.  Is it reasonable to expect that a governing document written back then could be relevant to such dramatic changes in the lives of the citizens of successive generations or to inventions which the founders could not have imagined?  We are not referring to nuance or style or even interpretation but rather to the hard, elementary, substance of individual freedom and liberty and a government whose bedrock-governing instrument constrains it from interfering with those basic liberties in the face of such sea changes in the lives of the people who are, today, governed by that venerable document.  Personal freedom and liberty, with specific guarantees against government interference is, after all, the bedrock of American exceptionalism and the defining characteristic of the American experience, but in the 21^st century there are countervailing forces pushing not only for greater government regulation of our lives, but for a very substantial role for government to reallocate private wealth and property based on some nebulous concept of fairness.

Political leadership that is insensitive to this reality may be, we believe, at the root of so much of the dissension throughout the country today.  While we recognize that numerous issues divide the American body politic as they always have, we believe there is something much more fundamental antagonizing so much of the country today.  Contentious issues are nothing new or unique in America.  We have dealt with major issues about which the people often had strong and differing views throughout our history.  We believe, however, that we are dealing with something (or a confluence of something’s) that represents a growing concern for many, if not most, Americans.  A national healthcare program, which a substantial majority of the people do not want; a federal spending binge, which a substantial majority of the people do not condone; unprecedented deficits, of which a substantial number of the people are extremely wary; an emerging federal redistributive wealth philosophy about which many people feel a growing unease, and an unelected regulatory bureaucracy that seems to be expanding at warp speed to make rules which amount literally to an assignment of legislative powers to unelected officials, have all coalesced to confront the American electorate with a troubling question.  Is the fundamental transformation of America that candidate Obama promised and that President Obama certainly seems clearly to be delivering, a transformation that most Americans really want?  And does such a transformation square with the essential relationships of citizens with their government or even with the relationships between the branches of government envisioned by the founders?

This brings us full circle back to the question we posed in the headline to this essay.  Would President Obama have supported ratification of the Constitution of the United States had he been in that position?  We believe President Obama and many members of Congress would have voted “nay” and not because of the fears of the dissenters in 1789 that too much power was being assigned to a central authority, but, rather, because of the converse, e.g., not enough power was granted to the national government to regulate our lives.

Early in the president’s political career, when he was but a state senator from Illinois’ 13^th district, and while he was still a lecturer in the law school at the University of Chicago, he agreed to be interviewed on Odyssey, a public affairs program on Chicago’s WBEZ radio station.  The interview, portions of which are quoted below, is especially illuminating.  Mr. Obama seems to lament the fact that neither the Constitution nor the courts evidence support for a federal policy of redistributing wealth.  That is, the courts have found nothing in the Constitution that provides for such government intrusion.  In fact, it wasn’t until 1913 and the passage of the Sixteenth Amendment to the Constitution that Congress even had the authority to tax income at all.  We believe the interview excerpted below, while a few years old, nonetheless, provides meaningful insight into the political philosophy of the president.

OBAMA:” If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples. So that I would now have the right to vote, I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be okay”… But,” Obama continued, “the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as people tried to characterize the Warren court, it wasn’t that radical.  It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it’s been interpreted, and the Warren court interpreted it in the same way…that generally the Constitution is a charter of negative liberties. It says what the states can’t do to you, it says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted. One of the… tragedies of the civil rights movement”, he said, “was because the civil rights movement became so court focused. I think that there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributed change (emphasis added) and in some ways we still suffer from that.”

In a subsequent interview Mr. Obama clearly expressed his opinion that once a certain level of income is achieved, that people then have enough (and presumably, thereafter, all of the balance should be taxed for redistribution or some other government purpose). And while that was Mr. Obama’s view, he did go on to say that it wasn’t the American way. Fair enough.  We’re sure there are many others who may feel the same way, but we’re equally sure that none of the drafters of the Constitution felt that way.  In fact, that was the very type of government power the founders were determined to avoid whether it be through the judicial or legislative branch of government.  We do not think the founders, any of them, would have condoned the appointment by future Presidents of a coterie of czars, all unconfirmed by the Congress, with broad, almost dictatorial powers, over entire swaths of the economic, social and business life of the new nation.  Certainly, they would have recoiled at empowering such overlords whose writings and public statements represented the very antithesis of what the founders had fought to create.

Had President Obama been a delegate voting on ratification of the Constitution, and had he held the same personal beliefs then that he expressed in the above-quoted interview, we believe he (and many others in today’s Congress) would have been in the opposition, and that he would not have found the Bill of Rights comprehensively responsive to his agenda for the new nation.  Moreover, many of those legislators who continue to pass legislation, the effect of which is to transfer wealth from the wealthy to the “underserved,” could not in good conscience have voted to ratify a document so clearly restrictive of such governmental power.

This is, of course, but speculation.  As we stated at the top of this essay, the founders anticipated that there would be need for change from time to time, and provided the means to affect such change. We also understand that dreams inform the thinking of leaders today just as dreams did 230 years ago.  We can only hope that the dreams that ultimately prevail in this generation mirror those dreams of the founders whose ideas made America the greatest engine for both liberty and prosperity in the history of humankind.  It would be folly to follow the illusory dreams so prevalent in those statist nations around the world whose policies are leading to out-of-control public debt, economic collapse, stagnation and will lead, ultimately, not to universal welfare, but, rather, to universal poverty and its all-too-frequent companion, repressive government.

By Hal Gershowitz and Stephen Porter

The Constitution of the United States of America is a remarkable document.  It is eloquent in its simplicity, clarity and in its power.  It revolutionized (first in America, and then throughout most of the western world) the relationship between those who are governed and those who govern.  It has served as a governing template for much of the democratic western world.

Every federal office holder swears allegiance to the Constitution, not to any leader, not to any party, not to any political philosophy—only to this document, which is the foundation upon which our form of government is based and against which all legislation and judicial actions are measured.  The President vows to do his job faithfully and, to the best of his ability, to preserve, protect, and defend the Constitution of the United States.

And while there is no way of divining what today’s crop of leaders would have thought of the Constitution had they been present at the founding when it was first circulated prior to ratification, we have our doubts whether many of today’s ruling class, including President Obama, would have found common cause with Washington, Adams (John), Jefferson, Franklin, Madison, Hamilton or Jay, all of whom loomed so large on the emerging American landscape.

This speculation is not intended as criticism of our political leadership or of the president.  Many great American patriots who were present at the founding opposed ratification of the Constitution.  Indeed, such American icons as Patrick Henry, Samuel Adams, John Hancock, George Mason and James Monroe, were resolutely opposed to ratification of the Constitution, so wary were they of concentrated federal power. Time has, of course, demonstrated the remarkable wisdom of those who fought for ratification and the value of the gift they bequeathed to us all.  The question raised by this essay, however, is posed as the basis for discussion of whether a document written so long ago, which lays out with simplicity certain fundamental rules and relationships, can truly guide this nation 221 years later.

And while we can’t know for sure how any politician holding office today would have voted had they been in a position to support or to oppose ratification of the constitution, we pretty well can determine whether the political views they hold today are consistent with the views of those founders whose genius produced it.  Let us, again, reiterate that support of, or opposition to, the Constitution at the time of its ratification was not an indication of one’s patriotism or love of country.   Those who drafted it also anticipated that it might have to be changed from time to time and provided an elaborate, albeit cumbersome, procedure for doing just that and, in fact, it has been amended twenty-seven times, with the first ten amendments literally a condition of ratification.

George Washington, who was a strong proponent of ratification and without whose support, ratification would have been impossible, nonetheless, faced severe constitutional crises during his very first administration.  One would think that determining the intent of its original drafters would have been pretty easy back then.  After all, the original drafters were all right there. All one needed to do was just ask.  Not so.  While they were all there, they didn’t all necessarily agree on what each of them intended in each sentence, section or Article.  They, of course, anticipated that there would be constitutional disputes and thus they constructed an independent and co-equal judicial branch, the pinnacle of which is our Supreme Court.

However, even the Article establishing the judiciary was not universally accepted by all the founders as giving the judicial branch the power to be arbiter of the meaning of the Constitution.  It wasn’t until the landmark case of Marbury v. Madison in which the concept of judicial review was established, or the Supreme Court labeled a Congressional act to be “unconstitutional.”

Washington also faced Supreme Court contests over his right to remove cabinet officers, the Jay Treaty, which formally ended the war with Great Britain and, arguably, whether or not the federal government had the right to send federal troops to put down a domestic rebellion.  Yes, we had a rebellion within the United States during the first Washington administration (“The Whiskey Rebellion”) and we did, indeed, send in federal troops to quell the insurrectionists.  .

But there was one principle about which there were no controversies at the founding.   Americans would be the freest people on the face of the earth, free in particular of undue government interference in their lives.  They would live in the world’s first meritocracy and they would be free to make their own choices about their political preferences and their economic pursuits. And while it would take close to a century before the young country would finally throw off the yoke of slavery, an institution that had long predated the founding, American citizenship represented a bold new experiment in human progress.

What was it, exactly, that launched this new phenomenon…a nation of free men, free to choose their own destiny…this catalyst that transformed a confederation of varied individuals with varied interests, skills and intellect living in separate states that zealously guarded their individual sovereignty into the greatest engine for progress and wealth generation the world had (or has) ever seen? The question answers itself.  It was the Constitution and the fidelity to it of the founding generation and the generations of American leaders who have followed.  It is the great balancing of limited and enumerated central government power, with the rights of the individual states that comprised the United States of America and, most importantly, the rights of individuals to live their lives largely free from governmental intrusions by either the state or federal governments..

This raises a question well worth pondering.  Should America expect its political leaders to embrace the aspirations of the founders?  After over 200 years with our form of governance the world is greatly changed.  Forms of transportation, communication and commerce between and among citizens, the several states and foreign nations which, while commonplace now, were non-existent in 1789.  Is it reasonable to expect that a governing document written back then could be relevant to such dramatic changes in the lives of the citizens of successive generations or to inventions which the founders could not have imagined?  We are not referring to nuance or style or even interpretation but rather to the hard, elementary, substance of individual freedom and liberty and a government whose bedrock-governing instrument constrains it from interfering with those basic liberties in the face of such sea changes in the lives of the people who are, today, governed by that venerable document.  Personal freedom and liberty, with specific guarantees against government interference is, after all, the bedrock of American exceptionalism and the defining characteristic of the American experience, but in the 21^st century there are countervailing forces pushing not only for greater government regulation of our lives, but for a very substantial role for government to reallocate private wealth and property based on some nebulous concept of fairness.

Political leadership that is insensitive to this reality may be, we believe, at the root of so much of the dissension throughout the country today.  While we recognize that numerous issues divide the American body politic as they always have, we believe there is something much more fundamental antagonizing so much of the country today.  Contentious issues are nothing new or unique in America.  We have dealt with major issues about which the people often had strong and differing views throughout our history.  We believe, however, that we are dealing with something (or a confluence of something’s) that represents a growing concern for many, if not most, Americans.  A national healthcare program, which a substantial majority of the people do not want; a federal spending binge, which a substantial majority of the people do not condone; unprecedented deficits, of which a substantial number of the people are extremely wary; an emerging federal redistributive wealth philosophy about which many people feel a growing unease, and an unelected regulatory bureaucracy that seems to be expanding at warp speed to make rules which amount literally to an assignment of legislative powers to unelected officials, have all coalesced to confront the American electorate with a troubling question.  Is the fundamental transformation of America that candidate Obama promised and that President Obama certainly seems clearly to be delivering, a transformation that most Americans really want?  And does such a transformation square with the essential relationships of citizens with their government or even with the relationships between the branches of government envisioned by the founders?

This brings us full circle back to the question we posed in the headline to this essay.  Would President Obama have supported ratification of the Constitution of the United States had he been in that position?  We believe President Obama and many members of Congress would have voted “nay” and not because of the fears of the dissenters in 1789 that too much power was being assigned to a central authority, but, rather, because of the converse, e.g., not enough power was granted to the national government to regulate our lives.

Early in the president’s political career, when he was but a state senator from Illinois’ 13^th district, and while he was still a lecturer in the law school at the University of Chicago, he agreed to be interviewed on Odyssey, a public affairs program on Chicago’s WBEZ radio station.  The interview, portions of which are quoted below, is especially illuminating.  Mr. Obama seems to lament the fact that neither the Constitution nor the courts evidence support for a federal policy of redistributing wealth.  That is, the courts have found nothing in the Constitution that provides for such government intrusion.  In fact, it wasn’t until 1913 and the passage of the Sixteenth Amendment to the Constitution that Congress even had the authority to tax income at all.  We believe the interview excerpted below, while a few years old, nonetheless, provides meaningful insight into the political philosophy of the president.

OBAMA:” If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples. So that I would now have the right to vote, I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be okay”… But,” Obama continued, “the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as people tried to characterize the Warren court, it wasn’t that radical.  It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it’s been interpreted, and the Warren court interpreted it in the same way…that generally the Constitution is a charter of negative liberties. It says what the states can’t do to you, it says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted. One of the… tragedies of the civil rights movement”, he said, “was because the civil rights movement became so court focused. I think that there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributed change (emphasis added) and in some ways we still suffer from that.”

In a subsequent interview Mr. Obama clearly expressed his opinion that once a certain level of income is achieved, that people then have enough (and presumably, thereafter, all of the balance should be taxed for redistribution or some other government purpose). And while that was Mr. Obama’s view, he did go on to say that it wasn’t the American way. Fair enough.  We’re sure there are many others who may feel the same way, but we’re equally sure that none of the drafters of the Constitution felt that way.  In fact, that was the very type of government power the founders were determined to avoid whether it be through the judicial or legislative branch of government.  We do not think the founders, any of them, would have condoned the appointment by future Presidents of a coterie of czars, all unconfirmed by the Congress, with broad, almost dictatorial powers, over entire swaths of the economic, social and business life of the new nation.  Certainly, they would have recoiled at empowering such overlords whose writings and public statements represented the very antithesis of what the founders had fought to create.

Had President Obama been a delegate voting on ratification of the Constitution, and had he held the same personal beliefs then that he expressed in the above-quoted interview, we believe he (and many others in today’s Congress) would have been in the opposition, and that he would not have found the Bill of Rights comprehensively responsive to his agenda for the new nation.  Moreover, many of those legislators who continue to pass legislation, the effect of which is to transfer wealth from the wealthy to the “underserved,” could not in good conscience have voted to ratify a document so clearly restrictive of such governmental power.

This is, of course, but speculation.  As we stated at the top of this essay, the founders anticipated that there would be need for change from time to time, and provided the means to affect such change. We also understand that dreams inform the thinking of leaders today just as dreams did 230 years ago.  We can only hope that the dreams that ultimately prevail in this generation mirror those dreams of the founders whose ideas made America the greatest engine for both liberty and prosperity in the history of humankind.  It would be folly to follow the illusory dreams so prevalent in those statist nations around the world whose policies are leading to out-of-control public debt, economic collapse, stagnation and will lead, ultimately, not to universal welfare, but, rather, to universal poverty and its all-too-frequent companion, repressive government.

By Hal Gershowitz and Stephen Porter

Repealing Obamacare via Article V is a means of last resort, or rather a threat to the national bureaucratic government should those in Washington not jump on board.  In the meantime, states, those individual laboratories of liberty, are attempting a number of remedies.

States have filed lawsuits, but my legal background makes me wary of relying on the judicial branch to make the ultimate decisions on policy.  Marbury v. Madison established the Supreme Court’s role as the ultimate arbiter in conflicts involving the Constitution, but that does not guarantee that correct decisions will result.  So first we will examine the legislative solutions.

Many states across the country are either introducing laws or revising constitutions to protect Americans from the tyranny of Obamacare.  The progress of these Health Care Freedom Acts or Amendments are being tracked by various groups.  Most of this legislation is fairly simple to read and understand.  Basically, states are refusing to enforce or enact Obamacare, which is perfectly reasonable under the present legal understanding of federalism.  The national government cannot force states to enforce unfunded federal law.  A perfect example of this is the increasing decriminalization of marijuana in communities across America.  Local police are handing out tickets (much better for revenue than throwing people in jail).

Health Care Freedom passed in a few states, including the Commonwealth of Virginia (in addition to its lawsuit), and is working its way through the legislatures of many others.  The first state to allow its citizens to vote in a referendum is Missouri.  The Missouri Health Care Freedom Act (MHCFA) appears on the ballot on August 3.  This vote may prove crucial in the repeal of Obamacare.  If it succeeds by large margins it will signify the beginning of the end of the progressive agenda.  Anyone who is serious about defeating the progressives should support Missouri in its endeavor.  You can be assured that OFA, MORE (the new Missouri ACORN), and other progressive organizations will be pulling all sorts of shenanigans.

Now let us discuss some of the legal reasoning in the quest to repeal Obamacare:

1) The 10th Amendment:

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.

First off, there is no such thing as “states’ rights.”  The Tenth addresses “powers,” and we dilute the meaning of “rights” by suggesting that states have them.  While no formal definition of “reserved powers” exists for the states, some are readily identifiable.  National legislative powers are limited to the enumerated powers “herein granted,” according to Article I § 1 of the Constitution.  That is, if a legislative power is not mentioned within the confines of Article I, it is reserved to the states.  And while the national powers of both the executive and judicial branches include implied powers, the implied powers do not exist in a vacuum, or rather those powers relate to the aforementioned legislative powers.  Traditionally, “reserved powers” includes public health, safety and welfare.  Many more exist, though.  State common law drives contract, family, property and tort jurisprudence.

The legal argument pertains to the enumerated powers.  Essentially, neither health care nor insurance can be found within Congress’ enumerated powers.  Progressives love to misconstrue Article I § 8 cl 1:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.

Apparently, “general” means “everything under the sun,” rather than “non-specific,” and one cannot get any more specific than an unprecedented 2400 page bill that addresses 1/5 of our economy.  Presumably, the states are tasked with providing for the “specific welfare.”  James Madison went further in delineating the powers of the national and state governments in Federalist 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

2) The Commerce Clause:

Article I § 8 cl. 3 reads:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

Progressives argue that even if the Constitution did not specifically grant the power to control health care, the Commerce Clause does, in conjunction with the Necessary and Proper Clause (Article I § 8 cl. 18):

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Commerce clause jurisprudence cannot be discussed within the confines of this article.  Suffice it to say that a government mandate to buy health insurance or suffer a penalty stretches the legislative power “to regulate commerce.”  One could argue that if the government could force citizens to buy health insurance then the government could also force citizens to buy firearms.  See how that sits with progressives!

3) Roe v. Wade

Let me preface this by saying that Mississippi is one of my favorite states in the Union.  The people there are some of the most hospitable in the country.  And now they are fighting progressive policy with progressive logic.

Most legal minds, whether they support or oppose the result of Roe, agree that the legal reasoning was flawed.  Roe established the “right to privacy” in American jurisprudence out of thin air.

The Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.

The problem is that the court did not go into great detail on the history of that right.  Another problem is that the court also recognized that this right was not absolute.  How a “fundamental right” cannot be absolute is perplexing, to say the least.  A later case, Planned Parenthood v. Casey, reaffirmed the rule in Roe, and furthermore, addresses government power in the realm of health care:

Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection.

Further discussion of the lawsuit in Mississippi can be found here.

4) The 9th Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Put simply, the government cannot ever be the guarantor of rights because those rights belong to the people, in opposition to government power.

The 9th Amendment would be more appropriately asserted by individuals, but this would not preclude state support.  I am not aware of any state asserting this argument directly, but it may not be applicable until the national government actually tries to enforce the individual mandate.  I have asserted the importance of this amendment in a discussion of “fundamental rights,” and in opposition to the progressive agenda. More importantly, this line of argument could prove persuasive to Justice Anthony Kennedy, a crucial vote on the Supreme Court.  Justice Kennedy likes to blaze a trail, and is acutely aware of his role in decision-making and precedence on the court.

In conclusion to this entire discussion, I leave you with these prophetic words of James Madison in Federalist 46:

But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.

Clinton: President Obama has spoken out against the law because he thinks that the federal government should be determining immigration policy. And the Justice Department, under his direction, will be bringing a lawsuit against the act. But the more important commitment that President Obama has made is to try to introduce and pass comprehensive immigration reform. That is what we need. Everyone knows it, and the President is committed to doing it.

The ACORN apologists over at Media Matters were hard at work last week as they took time to once again whitewash or ignore the truth in order to protect ACORN. Even though Media Matters claims that my article titled “Radical Judicial Nominee Jack McConnell’s Disturbing ACORN Connections” is “nothing new” and the connections I drew in the article “between ACORN and progressives” are “even weaker than previous conservative attacks,” Media Matters apparently felt a need to try to refute it. Why write about “nothing new”?

Unfortunately for Media Matters, its arguments only work as long as its readers are content with ignoring key facts about ACORN and its role in politics, elections and government itself.

As stated in my previous article posted at many websites, including BigGovernment.com, there are several disturbing connections involving Jack McConnell, the lead paint litigation, and ACORN. Keeping in mind that this is the same “news organization” that still insists that ACORN’s alter ego Project Vote was totally separate from ACORN when Barack Obama worked for them, I will let ACORN’s own words explain its involvement in the Sherwin-Williams California case. The excerpt below is from page 59 of an ACORN report available here (click to enlarge).

Why would Media Matters ignore ACORN’s own words?

For the same reason it tries to dismiss my article as a conservative attempt to use ACORN as the “boogeyman.” By omitting the fact that I worked for ACORN and testified against ACORN/Project Vote in 2008, Media Matters hopes to downplay the significance of my knowledge of ACORN’s inner workings and its relationships with others.

In fact, while in the DC office of ACORN/Project Vote I worked on projects that allowed me to discover that among the donors to Project Vote was the private law firm involved in the California lead paint case.

Court documents show that the petitioners, California counties and cities, had not only hired Jack McConnell’s firm, Motley Rice, but also “Cotchett, Pitre & McCarthy” (and others) to represent them against the paint companies (interestingly, the Santa Clara County counsel who initiated the lead paint case was appointed by the Obama administration to the Justice Department last year).

Not only did Cotchett, Pitre & McCarthy give over $10,000 to ACORN’s Project Vote,  they were ACORN’s own attorneys. The connection between Motley Rice, ACORN and Cotchett, Pitre & McCarthy is crystal clear in a reference here from page 31 of a 2006 report by ACORN.

“Amy Schur, directing this effort, was vigilant, and having dogged them all year, has constructed a legal strategy with ALERT and the Cachet firm [sic Cotchett] that has now brought the cities of San Diego and Los Angeles into the lawsuit.”

ACORN founder Wade Rathke mentions donor/attorney Naill McCarthy by name and also explains the lead paint litigation strategy in his book Citizen Wealth.

Wade goes on to explain how organizations like ACORN use litigation to gain power.

To recap for the Media Matters readers who may be used to having their news filtered:

1. ACORN staged a NATIONWIDE campaign against paint company Sherwin Williams.
2. ACORN turned down settlements to clean up the damage because it wanted money.
3. ACORN and its attorneys were in the final stages of given ACORN a seat in the negotiation process in the California case.
4. Cotchett, Pitre & McCarthy represented ACORN in similar cases against Household Finance and Wells Fargo.

Don’t be fooled by the misspelling in the ACORN report, Cotchett, Pitre & McCarthy is the same law firm that successfully represented ACORN in the Wells Fargo case.

“Wells Fargo Financial, Inc., the consumer finance subsidiary of Wells Fargo & Company, and the law firms of Cotchett, Pitre & McCarthy (Burlingame, Calif.) and Miner, Barnhill & Galland, P.C. (Madison, Wisc.) said they have agreed to settle a class action lawsuit…..

In the proposed settlement, Wells Fargo Financial commits to continue for three years several improvements it had already put into practice, which have further strengthened its nonprime real estate-secured lending practices, and to implement other practices to benefit its customers. It also agrees to enact a default relief program, earmarking $2.4 million to provide relief to qualifying class members whose loans have become delinquent by more than 60 days. Qualifying class members who submit claims may also be entitled to cash payments, which will be determined using a formula to disburse up to $4.4 million.

The Association of Community Organizations for Reform Now (ACORN), a party to the lawsuit, had alleged that Wells Fargo Financial failed to adequately disclose points and prepayment penalties and had inaccurately reported loan balances on some of its California customers to credit reporting agencies.”

ACORN involvement in the lead paint issue was tremendous. Besides releasing reports and, staging protests (both national and international), ACORN even dedicated a separate website to the cause.

ACORN demonstrations included:

A reasonable person would say that given ACORN’s relationship with former Rhode Island Attorney General Sheldon Whitehouse and current United States Senator (an enthusiastic supporter of Jack McConnell’s nomination), and its work with Cotchett, Pitre & McCarthy on settlements, does raise the question as whether Motley Rice’s agreement with DuPont paint deserves more scrutiny.

“It’s odd and I think unlawful that the Attorney General, in a sense, appropriated the DuPont settlement moneys for his own purposes. It’s curious part of the money went to his alma mater, another part w[ent] to pay off a pledge made by Motley Rice to a Boston hospital, then the rest of the money went to the Children’s Health Forum, which is not based in Rhode Island at all.”

The fact that ACORN Advisory Committee member and long time ACORN ally Henry Cisneros is on the board of the Children’s Health Forum could be considered a coincidence to the folks over at Media Matters, but what if I were to tell you that the Mayor of Los Angeles Antonio Villaraigosa was on the advisory committee of the Children’s Health Forum?

In 2009 Cisneros was honored for his commitment to ACORN while Villaraigosa engaged in crisis PR for the group. Side note:  Villaraigosa is also board members of the Institute for America’s Future, a group that goes out of its way to protect ACORN interests.

Either Jack McConnell’s law firm Motley Rice was totally oblivious to the FACT that Cotchett, Pitre & McCarthy were in the FINAL stages of securing ACORN a seat next to them  at the negotiating table or McConnell lied during his confirmation hearing (see transcript below)

SEN. KYL: I understand. My five minutes is up. It’s kind of hard to have continuity in questioning when we have this kind of limitation. I understood the point you were originally trying to make, but if I can — and I have a couple more minutes’ worth of questions just as a follow up to this.

My point really was not only, is it right to seek this as a movement, but whether you actually encourage these lawsuits in other states — you or your law firm — did you?

MR. MCCONNELL: No, Senator, we did not.

SEN. KYL: Are you aware of any role by the Association of Community Organizers for Reform Now — that’s ACORN — in how those cases might have come to be filed?

MR. MCCONNELL: No, neither I nor my firm have had any relationship with ACORN.

President Clinton said that his answer depended upon what the meaning of the word is is. McConnell might say that it depends upon what a relationship is. Apparently McConnell did not want to acknowledge any kind of relationship to ACORN by the time his confirmation hearing was held. Still, McConnell, his firm and ACORN are all connected. McConnell’s key role in the lead paint litigation in Rhode Island, where ACORN had a significant presence, and his law firm’s subsequent participation in the California lead paint case on the side of ACORN and its California law firm contradict his unqualified assurance that neither he nor his firm “had any relationship with ACORN.”

To quote from ACORN Report shown in the screen shots above:

p. 38: “Luck would have it that the major CA lawsuit against the paint industry is being handled by the same law firm handling our Wells Fargo case [Cotchett, Pitre & McCarthy]–and they want to work together on the lead case. Over the last month we have been able to convince several major CA cities and school districts to join the lawsuit. In a potentially important precedent for our role in these types of cases, we are in the final stages of negotiating a seat for ALERT (ACORN Law for Education, Representation & Training) on the legal team for the case, which puts us at the table–and in the settlement negotiations.”

P. 59: December 2006–”ACORN gets 2 cities and 2 school districts in CA to join a lawsuit against paint companies”

ACORN demanded and received changes to a congressional report that –surprise, surprise– fails to find ACORN did anything wrong.

Longtime ACORN lawyer Arthur Z. Schwartz sent a letter to the Government Accountability Office (GAO) which was examining federal grants to ACORN, under orders from Congress. Schwartz’s demands appear at pages 32 and 33 of the report which is called “Preliminary Observations on Funding, Oversight, and Investigations and Prosecutions of ACORN or Potentially Related Organizations.” The paper is available at GAO’s website.

ACORN’s election fraud assurance division, Project Vote, which used to employ President Obama, even threw in a few helpful suggestions in an effort to trick Americans into believing it no longer has anything to do with ACORN. Project Vote lawyer Brian Mellor’s letter appears at pages 35 and 36 of the report.

The preliminary -as in incomplete, insufficient, and downright superficial- report is less than enlightening. I got the distinct impression while reading it that its authors hadn’t actually been following ACORN’s troubled history. You can’t expect much from a federal investigation when the question posed, namely, whether some of the grants ACORN received, were misused. Instead of doing actually shoe-leather investigating, all GAO appears to have done is talked to other government agencies and compiled existing data.

Table 4 at p.19 of the report indicates that of the six major federal agencies GAO asked questions of only ONE (!) has provided responses so far. Talk about “preliminary”!

It is amazing that GAO’s lukewarm threshhold-level probe is considered an investigation at all.

The real issues that have yet to be explored are whether ACORN engaged in violations of RICO through money-laundering of taxpayer funds designated for nonpartisan activities, engaged in partisan activities, and violated ERISA (the federal pension statute) by shifting pension funds around in order to conceal a million dollar embezzlement perpetrated by the ACORN founder’s brother (Dale Rathke) — for starters! ACORN’s criminal activities stretch almost all the way back to the group’s founding in 1970 in Arkansas.

Only a proper racketeering investigation will shed light on ACORN’s decades of lawbreaking.

Meanwhile, ACORN hagiographer and radical left-wing community organizer John Atlas, author of Seeds of Change, crows that ACORN has been “vindicated” by a new preliminary threshhold-level report by the Government Accountability Office (GAO).

When he’s not agitating people in the inner cities to rise up against their government, Atlas is a full-time unicorn breeder.

Barack Obama’s infamous phrase “Just words.  Just speeches” keeps ringing in my ears.  While the U.S. economy crumbles and the world teeters toward war, the President busies himself with words and speeches (not to mention photo ops and vacations and parties).  Appalling, yes.  Surprising, no.  To quote Yogi Berra: “This is like deja vu all over again.”

Today’s leaders of the Democratic Party are not at all progressive.  In fact, their ideology is regressive – a throwback to an ideology popular in the 1920s and 30s and 40s.  Their vision is that people they consider the “ignorant many” should be governed by people who see themselves as the “enlightened few.”

At the core of this socialist outlook on life is what Friedrich Hayek called “the fatal conceit.”  That’s a person assuming that, if he were given unlimited power, then everything would be perfect.  He projects that government employees would act on his behalf.   He sees government employees as a proxy for his own egotistical fantasies.

A faceless bureaucracy is too impersonal, however, for some socialists, who prefer a proxy with a face.  These people prefer to focus their aspirations on a charismatic leader, who attracts hordes of followers, all dreaming that the great leader would, in fact, impose their own will on society, if only He were in charge of everything!

Relieved of the burden of having to think for themselves, these fanatics can easily find their political passions unrestrained by reason.  This fascist mentality can produce the thuggish brutality of a Benito Mussolini regime.

Nowadays, “fascism” is just an all-purpose insult.  Few of those who call people they don’t like “fascists” know what fascism is.  Fascism is an economic system.   The name comes from an ancient Roman symbol, the “fasces,” a bundle of sticks – referring to how all sectors of society would be tied together by the government.

Back in the day, many intellectuals and other so-called progressives hailed fascism as a “third way” between communism and capitalism.  Under fascism, private property does exist, but it is concentrated into big businesses, controlled by the government.  Workers are also concentrated, into huge unions, again, controlled by the government.

“Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power.”

“All within the state.  Nothing outside the state.  Nothing against the state.”

–  Benito Mussolini

Young people, students, union members, environmentalists, minorities, scientists, retirees, celebrities, and so on – under fascism, each sector of society is “a stick” – bundled and tied together and controlled by the government.  And, at the head of the fascist state is the Leader, who struts as if onstage and mesmerizes crowds with speeches, lots of speeches.

Benito Mussolini is best remembered for his egotistical speechifying, but his background should be just as well known.  His father was a socialist who named him after a Mexican revolutionary icon, Benito Juarez.  His two middle names honored a pair of Italian socialists.  Mussolini rose to prominence as editor of a socialist magazine.

At the head of a black-shirted goon squad, he strutted and preened and wooed and threatened his way to power.  But, once in office, Mussolini showed little interest in the actual governance of Italy, leaving most administrative responsibilities to others.

Benito Mussolini was a very lazy guy.  He spent most of his time focused on showmanship and self-glorification.  In World War II, for example, spies in Rome told an astonishing tale, that during one major military crisis, Italy’s Leader idled away the afternoon chatting with his chauffeur.  Basically, his message to government officials was: “Call me if you need me.”

The analysis of socialism in this essay is adapted from Back to Basics for the Republican Party, cited by Clarence Thomas in a Supreme Court decision.  See www.grandoldpartisan.com for more information.

The 17th Amendment is stupid:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years….

But let me start at the beginning.  Article I § 3 cl. 1 of the Constitution originally established the election of Senators through the state legislatures.  The Federalist #62 laid out numerous arguments for the Constitutional framework of the Senate and its method of selection.

The senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages….

Years later, Alexis de Tocqueville made some observations about the Senate in “Democracy in America.”

The Senate is composed of eloquent advocates, distinguished generals, wise magistrates, and statesmen of note, whose arguments would do honor to the most remarkable parliamentary debates of Europe.

We went from great statesmen like Henry Clay, Daniel Webster and John Calhoun prior to the 17th Amendment, to that of Al Franken.

This man would never have been elected to the Senate prior to the 17th Amendment. 

A number of issues in the Missouri Senate race highlight the problems with the 17th Amendment, which leads me to US Senate candidate Robin Carnahan (D-MO).

As a Missouri blogger pointed out, she has no clue what a “banking executive” does or which side of the podium the state and national flags should be placed, let alone what her role would be as a Senator from Missouri.  Evidence of this can be found in her recent smears of US Senate candidate Roy Blunt (R-Missouri).  She accuses Blunt of being a proponent for a “Big Oil Bailout” in light of the recent BP oil spill.  Her accusations were quickly debunked by left-leaning factcheck.org.  Of course, the bigger issue here is what the hell that has to do with Missouri.  What should concern Missourians is Democrat support for Cap & Trade that has been influenced by BP and would harm Missouri taxpayers.  Robin Carnahan should have to explain why she would not support a job-killing bill proposed by her party, and supported by “Big Oil.”  I say “should” because she is nowhere to be found.  Roy Blunt can be seen all over the state campaigning.

Carnahan is relying on her name recognition in Missouri, and her ability to avoid commenting on any substantive policy concerning the state of Missouri.  Her life in public office as Missouri Secretary of State consists of playing patron to various progressive organizations in their quest to ruin the elective process in Missouri. The “Carnahan” name does have some pull.  Her father infamously defeated John Ashcroft in a 2000 Senate race, despite the fact that he died prior to the election.  Her brother, “Rubberstamp” Russ Carnahan, similarly won with name recognition a seat in the US House of Representatives.  He tows the line for Nancy Pelosi and the national Democratic Party, just like Robin will do if she wins.  If the 17th Amendment did not exist, her campaign for Senate would be laughable.

Another issue is the Republican primary.  The favorite is heavyweight US Representative Roy Blunt, while the underdog, State Senator Chuck Purgason, has been garnering support from the grassroots.

Blunt has the resources to defeat Carnahan, while Purgason has the outsider credentials favored in the national anti-incumbent atmosphere.  This is where the fight for Missouri’s Senate seat should be fought.  Without the 17th Amendment, Carnahan would not stand a chance with the conservative state legislature (which allowed the first state referendum on Obamacare).  She relies on the media in St. Louis and Kansas City to push her candidacy, while Blunt and Purgason fight it out among voters to their own detriment.  In the end, Missouri may not get the representative it deserves in the Senate.

I have often said that when it comes to American government we should ask ourselves WWJMD (What would James Madison do?), and so I end with the thoughts of James Madison (who, I might add, authored the Constitution), in Federalist # 62, which exemplifies the need for contrast between the two houses of Congress:

It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government.

It appears that “sinister combinations” have increased proportionately with the decrease in “dissimilarity” between the houses of Congress.  As a result, the administrators of our national government have forgotten their constituents, and proved “unfaithful to their important trust.”

Repeal the 17th Amendment!

“ACORN HQ is wkg [working] for the Democratic Party,” so say the newly released FBI records.  The handwritten notes provide a laundry list of underhanded activities related to elections in St. Louis, Missouri, in 2007.

The documents obtained through the Freedom of Information Act by Judicial Watch, a conservative government watchdog group in Washington, DC, concern the arrests of eight workers from the Association of Community Organizations for Reform Now, aka ACORN, for violations of election laws and voter fraud in Missouri.

ACORN is a collection of “community organizations” purportedly promoting various social issues relevant to low-income families, and large-scale voter registration drives have been a significant aspect of that outreach since the 1980s. During the 2006 mid-term elections there were numerous reports of voter fraud on the part of ACORN’s canvassers, which led to investigations in numerous states. The 2006 federal investigation of the allegations in Missouri led to several convictions, but after a similar investigation in Connecticut was halted by the Obama Justice Department in 2009, Judicial Watch filed a Freedom of Information Act request to obtain the documents produced by the earlier investigation.

The result was a collection of FBI documents which included copies of arrest warrants and court documents and over one hundred pages of handwritten notes from the FBI investigators regarding the ACORN employees’ attitudes and actions.

The investigators were told that ACORN had “told employees not to talk to the FBI“, and that “anyone who was against PV (Project Vote) or ACORN’s goals [were] ‘right wing.’” The investigators noted that Project Vote paid ACORN “whether the [voter registration] cards were fake or not” and one of the employees they interviewed “said ‘You treat the cards like $ (cash).’” Despite knowing that submitting fake voter registration cards was against the law, employees detailed several methods for creating fake cards. One explained that they would get “some names…right from the phone book and made up the rest.” Another “thought if she used a completely fake name it would be less like ID theft.”

The Connecticut and Missouri investigations are not stand-alone incidents, however. ACORN has a long history of encouraging falsification of voter registration cards. Between 2004 and 2006, they had been implicated in investigations in 12 states, and in 2007 were involved in the largest instance of voter fraud in Washington state’s history. In 2009, ACORN was investigated by the House Oversight and Government Reform Committee which issued an 88 page report which declared that “[t]he weight of evidence against ACORN and its affiliates is astounding.”

Astounding, indeed.  These documents show the need for a national criminal investigation by the Obama Justice Department into ACORN. Is Attorney General Holder doing nothing because of Obama’s close connections to ACORN and Project Vote? The information in these new documents has national implications that cry out for further investigation,” stated Judicial Watch President Tom Fitton.

In an amusing coincidence, Secretary of State Hillary Clinton and I were both in Latin America this week offering fiscal policy advice. But it won’t surprise you to know that Mrs. Clinton’s suggestions are radically different than the advice I provided. She spoke in Ecuador and, according to an AFP report, said it was time for “the wealthy across the Americas to pay their ‘fair share’ of taxes in order to eliminate poverty and promote economic opportunity for all.” She also claimed that “her appeal to overhaul tax systems did not amount to ‘class warfare’ and was instead a recognition that the ‘winner-take-all-approach’ was a drag on progress.” The AFP story concludes with Mrs. Clinton asserting, “We can’t mince words about this. Levels of tax evasion are unacceptably high,”

By contrast, in my remarks to the Fundacion Libertad in Panama and in my speech to the Chamber of Commerce in El Salvador, I explained that academic research shows that better tax compliance is best achieved by lowering tax rates and eliminating inefficient and corrupt spending programs so that taxpayers have more confidence that their money is not being wasted. But let’s touch on something even more important than economics. I also made a moral argument about the danger of giving national tax authorities too much power and information – especially in a region where governments oftentimes are the source of oppression, expropriation, and tyranny. Simply stated, there are some things that are more important than obeying tax laws. This Center for Freedom and Prosperity video explains that so-called tax havens are an extremely important refuge for people who are subject to persecution and other forms of government malfeasance.

Let’s consider some Latin American examples. Imagine a political dissident in Venezuela. Hugo Chavez has turned that country into a thugocracy and opponents of his sinister regime are vulnerable to having their assets expropriated (and worse). Thankfully, many Venezuelans are able to protect themselves from socialist tyranny by putting their money in Cayman, Panama, or Miami (the U.S. is a tax haven for non-U.S. people). But if Mrs. Clinton got to make the rules, tax havens would no longer exist and Chavez would be empowered.

Or what about families in Mexico, who rightfully are afraid that if they keep their money in the country and report it on their tax returns, corrupt bureaucrats in the national tax office will sell their names to criminal gangs and suddenly their children will be kidnapped and they will have to deal with the horror of getting a ransom note accompanied by a child’s finger. Fortunately, many Mexicans can guard against this horrific possibility by placing their assets in Cayman, Panama, or Miami. But in Mrs. Clinton’s ideal world, those options would not exist and many more people would experience the nightmare of vicious crime.

And consider the plight of Argentinians. A few years ago, the nation’s venal government stole the private pension assets of the people. This is in addition to radical currency devaluations that have wiped out a big chunk of people’s savings. Prudent Argentinians have avoided these forms of back-door thievery by moving funds to Cayman, Panama, and Miami. In the Orwellian world envisioned by Mrs. Clinton, however, tax havens wouldn’t exist and governments would have carte blanche to engage in bad policy.

This is not the first indication of Mrs. Clinton’s government-über-alles mindset as Secretary of State. Let’s remember that she urged class-warfare tax policy for Pakistan and more recently said Brazil was a role model for soak-the-rich tax policy (a strange assertion since the top tax rate there is only 27.5 percent). If nothing else, at least we can give her credit for being consistent.

But if I have to choose between Mrs. Clinton’s consistent statism and protecting the liberty and freedom of oppressed and persecuted people, it’s no contest. Politicians and senior government appointees all over the world act as if folks in the private sector are nothing more than serfs and peasants who have an obligation to pay ever-higher tax burdens, so we should be happy that so-called tax havens offer a refuge – even if we don’t live in failed states such as Venezuela, Mexico, and Argentina. Actually, since Obama is trying to turn us into Greece, maybe this issue will be important for Americans even sooner than we think.

In an amusing coincidence, Secretary of State Hillary Clinton and I were both in Latin America this week offering fiscal policy advice. But it won’t surprise you to know that Mrs. Clinton’s suggestions are radically different than the advice I provided. She spoke in Ecuador and, according to an AFP report, said it was time for “the wealthy across the Americas to pay their ‘fair share’ of taxes in order to eliminate poverty and promote economic opportunity for all.” She also claimed that “her appeal to overhaul tax systems did not amount to ‘class warfare’ and was instead a recognition that the ‘winner-take-all-approach’ was a drag on progress.” The AFP story concludes with Mrs. Clinton asserting, “We can’t mince words about this. Levels of tax evasion are unacceptably high,”

By contrast, in my remarks to the Fundacion Libertad in Panama and in my speech to the Chamber of Commerce in El Salvador, I explained that academic research shows that better tax compliance is best achieved by lowering tax rates and eliminating inefficient and corrupt spending programs so that taxpayers have more confidence that their money is not being wasted. But let’s touch on something even more important than economics. I also made a moral argument about the danger of giving national tax authorities too much power and information – especially in a region where governments oftentimes are the source of oppression, expropriation, and tyranny. Simply stated, there are some things that are more important than obeying tax laws. This Center for Freedom and Prosperity video explains that so-called tax havens are an extremely important refuge for people who are subject to persecution and other forms of government malfeasance.

Let’s consider some Latin American examples. Imagine a political dissident in Venezuela. Hugo Chavez has turned that country into a thugocracy and opponents of his sinister regime are vulnerable to having their assets expropriated (and worse). Thankfully, many Venezuelans are able to protect themselves from socialist tyranny by putting their money in Cayman, Panama, or Miami (the U.S. is a tax haven for non-U.S. people). But if Mrs. Clinton got to make the rules, tax havens would no longer exist and Chavez would be empowered.

Or what about families in Mexico, who rightfully are afraid that if they keep their money in the country and report it on their tax returns, corrupt bureaucrats in the national tax office will sell their names to criminal gangs and suddenly their children will be kidnapped and they will have to deal with the horror of getting a ransom note accompanied by a child’s finger. Fortunately, many Mexicans can guard against this horrific possibility by placing their assets in Cayman, Panama, or Miami. But in Mrs. Clinton’s ideal world, those options would not exist and many more people would experience the nightmare of vicious crime.

And consider the plight of Argentinians. A few years ago, the nation’s venal government stole the private pension assets of the people. This is in addition to radical currency devaluations that have wiped out a big chunk of people’s savings. Prudent Argentinians have avoided these forms of back-door thievery by moving funds to Cayman, Panama, and Miami. In the Orwellian world envisioned by Mrs. Clinton, however, tax havens wouldn’t exist and governments would have carte blanche to engage in bad policy.

This is not the first indication of Mrs. Clinton’s government-über-alles mindset as Secretary of State. Let’s remember that she urged class-warfare tax policy for Pakistan and more recently said Brazil was a role model for soak-the-rich tax policy (a strange assertion since the top tax rate there is only 27.5 percent). If nothing else, at least we can give her credit for being consistent.

But if I have to choose between Mrs. Clinton’s consistent statism and protecting the liberty and freedom of oppressed and persecuted people, it’s no contest. Politicians and senior government appointees all over the world act as if folks in the private sector are nothing more than serfs and peasants who have an obligation to pay ever-higher tax burdens, so we should be happy that so-called tax havens offer a refuge – even if we don’t live in failed states such as Venezuela, Mexico, and Argentina. Actually, since Obama is trying to turn us into Greece, maybe this issue will be important for Americans even sooner than we think.

President Obama surely didn’t intend it, but he deserves some credit for last year’s 7.4 percent drop in murder rates. His election caused gun sales to soar, and crime rates to plummet.

While gun sales started notably rising in October 2008, sales really soared immediately after Mr. Obama won the presidential race. 450,000 more people bought guns in November 2008 than bought them in November 2007, that’s over a 40 percent increase in sales. By comparison, the change from November 2006 to November 2007 was only about 35,000. Over the last decade, the average year-to-year increase in monthly sales was only 21,000.

The increase in sales continued well beyond November 2008. From November 2008 to October 2009, almost 2.5 million more people bought guns in the 12 months after the election than in the preceding 12 months. The National Instant Criminal Background Check System, or NICS, doesn’t tell us how many guns each person bought just the number of people who bought them. Most likely though, gun sales rose by more than the number of people who purchased them.

At the same time gun sales were soaring, there was an unusually large drop in murder rates. The 7.4 percent drop in the murder rate was the largest drop in murder rates since the 1999. For those who don’t remember, 1999, when President Bill Clinton and Columbine occurred, was another time when gun sales soared. With people such as Elena Kagan serving as Mr. Clinton’s deputy domestic policy adviser were pushing hard for more gun control, Americans were worried that more gun bans were coming. And in response gun sales soared.

Just as higher arrest and conviction rates, longer prison sentences, or the more frequent use of the death penalty reduce crime, so does letting victims defend themselves with guns. More certain or greater penalties make it more risky for criminals to commit crime. Victims who can defend themselves can also make committing crime more dangerous and deter criminals.

Americans living in the District of Columbia and Chicago have seen this phenomenon themselves. After the ban went into effect in both cities, murder rates rose dramatically. After the Supreme Court threw out DC’s ban and gunlock laws in 2008, the District’s murder rates plunged by 25 percent in 2009. Indeed, my research in the just released third edition of More Guns, Less Crime shows that every place in the world that we have crime data for has seen murder rates climb when guns were banned.

If Mr. Obama really understood that letting law-abiding citizens defend themselves reduces crime, it is unlikely that gun sales would have had to increase. Yet, if the Supreme Court strikes down the Chicago gun ban this month, Americans may get to see yet again that more guns mean less crime.

Since the early twentieth century, periods of real or perceived national emergency have been “critical episodes” in the growth of government’s size, scope, and power in the United States and in many other countries. Hence, the concise conceptualization: Crisis and Leviathan (the main title of my 1987 book on the growth of government in the United States from the late nineteenth century to the late twentieth century).

In the past century, the first five such critical episodes in the United States were: World War I; the Great Depression; World War II; a multi-faceted set of crises associated with the civil-rights revolution and the Vietnam War, roughly coincident with the presidencies of Lyndon B. Johnson and Richard M. Nixon; and the post 9/11 events associated with the so-called War on Terror and the U.S. attacks on and occupations of Afghanistan and Iraq. We are now amid another such critical episode, which springs from the housing bust that began in 2006, the economic recession that began late in 2007, and the financial debacle that reached its climax in September 2008.

The current troubles are complex and raise a multitude of questions. Many books and articles no doubt will be written to analyze these various issues in scholarly depth and detail, and certainly anything we might say today must be regarded as preliminary, at best. I focus here on a few aspects of the present episode that relate closely to my own research on the growth of government, a field of study to which I have returned again and again over the past thirty years.

I

The current recession has elicited many comparisons with earlier business downturns, especially with the Great Depression. Federal Reserve chairman Ben Bernanke is often described as an expert on the Great Depression who takes its lessons, as he understands them, deeply into account as he formulates and implements Fed policies. Likewise, many other economists have revisited the Great Depression recently in search of lessons applicable to current policy-making. In all of these reflections, the mainstream economics profession in general has distinguished itself by an astonishing superficiality of historical knowledge and lack of theoretical prowess.

The swiftness with which a great many mainstream economists have reverted to the simplistic “vulgar Keynesianism” that had its heyday from the late 1940s to the late 1960s has been nothing short of shocking, given that by the end of the 1970s such old-fashioned Keynesianism seemed to have been completely discredited and superseded in the leading echelons of the mainstream economics profession. Now it has come roaring back.

Of course, the general public, whose understanding of such matters is always primitive, and the politicians, who are always looking for plausible intellectual rationales to excuse their insatiable spending, borrowing, and power-grabbing, had never abandoned vulgar Keynesianism, so they were elated to find that the economic “experts” were again confirming their own self-interested inclinations.

From such vulgar Keynesian thinking flowed the succession of “stimulus” spending measures, beginning with the Bush administration’s, carried out in the spring of 2008. Other governments have gone down the same foolish path. Of course, as any competent economist could have testified even fifty years ago, such temporary government-spending surges give people money that, for the most part, they save or use to pay off debts, rather than spending it along the lines envisioned by Keynesian “multiplier” analysis to set in motion an upward spiral of income, expenditure, real output, and employment. Much of the so-called stimulus spending in the United States has served only to bulk up the pay and benefits of government employees (federal, state, and local), effectively transferring income from the private sector to the government sector, and to reward other groups, such as the United Auto Workers and low-income home buyers, for their support of the Obama administration—past, present, or future.

Bernanke and his colleagues in other central banks are taking credit for saving the financial system and even for saving the world from a repetition of the Great Depression—claims that must be treated with extreme skepticism. In any event, however, they have certainly created the potential for rapidly accelerating consumer-price inflation, should the banks become less apprehensive about their balance sheets and employ their vast excess-reserve balances to resume their lending and investing on a more normal basis.

Bernanke expresses confidence that he has the “tools” to rein in such potentially inflationary bank action, mainly by raising the interest rate the Fed pays banks on their deposits at the Fed, but one may well doubt whether he will be able to use those tools effectively. When interest rates begin to rise substantially, as they must sooner or later, great political pressure will be brought against tighter-money actions by the Fed and other central banks; the politicians will protest increases in interest rates at a time when unemployment remains at an elevated rate and other aspects of the recession linger, as well. So, even if Bernanke has the effective tools he claims to have, the question remains as to whether he will have the personal courage and the political support required to use those tools effectively.

II

One aspect of the current crisis that has come as anything but a surprise is that the politicians and their supporting coalition of crony capitalists and other backers have certainly not (in the immortal words of Barack Obama’s chief of staff Rahm Emanuel) allowed “a crisis to go to waste.” The past two years have witnessed one power-grab or institutional takeover after another, most notably of AIG, Fannie, Freddie, General Motors, and Chrysler. Under the TARP scheme, the Treasury has taken ownership positions in hundreds of large banks by acquiring preferred shares and warrants. Virtually all residential mortgage lending now ultimately springs from the secondary market and guarantees provided by Fannie, Freddie, Ginnie Mae, FHA, and VA. This aspect of the government’s power-grab has been especially important because by continuing to pump funds into dodgy mortgages, the government is preventing the necessary restructuring of the housing-construction industry and the mortgage-credit sector, propping up unqualified and underwater borrowers and ill-managed and even insolvent lenders, and thereby creating great potential for a second round of the housing/housing-finance bust in the near-term future.

As the huge recent expansion of the government’s size and scope has proceeded, the Treasury’s fiscal condition has deteriorated badly. The federal deficit jumped from an amount equal to about 3 percent of GDP in fiscal 2008 to an amount equal to about 10 percent of GDP in fiscal 2009, and even the government’s forecasts now project deficits in the neighborhood of $1 trillion per year for the next decade. Thus, the U.S. government’s debt has exploded, and will continue to rise relentlessly—or, it will do so as long as willing buyers can be found for bonds promising only modest nominal yields, a market that Uncle Sam can no longer assume will persist indefinitely. (The Chinese and other major buyers are already grousing and insisting that the U.S. Treasury act more prudently.)

While the government proper was expanding its size, scope, and power, the Fed was greatly expanding the magnitude and scope of its own balance sheet and, in effect, engaging in “industrial policy” by singling out particular firms and industries for assistance, while steering clear of others in equally dire condition. If the Fed is not “picking winners,” it is certainly deciding who will be spared a market-determined fate as a loser. Fed officials insist that they intend to withdraw from many of the new areas they have recently entered, once the crisis has passed, but it will be surprising if the recent “emergency” policies do not remain in the Fed’s arsenal, bulking up its power, and equally surprising if it sloughs off all of the unusual types of “securities” it has acquired in the past two years.

At the moment, the Fed is seeking—and it, the FDIC, or another government regulatory entity may well be given—wide-ranging statutory authority to reorganize preemptively any seemingly failing firm (not only banks) whose failure would pose, in the Fed’s estimation, a “systemic risk.” Such authority would greatly expand the Fed’s current power as a monetary central planner by adding a role as risk-management central planner. Regardless of whether the Fed, the FDIC, or another government regulatory entity ends up the winner of the current power scramble, the possible repercussions of this expanded power on the operation of the capital markets is frightful to contemplate.

III

As the current troubles have led many economists and others to revisit the government’s policies during the 1930s, some have concluded that even though the New Deal’s hodgepodge of policies never brought about full recovery, the action that most economists believe did effect a full recovery—in Paul Krugman’s words, “the large public works program, otherwise known as World War II, that ended the Great Depression”—suggests a remedy for today’s recession along similar lines. In retrospect, it is clear that this belief in the creation of “wartime prosperity” by massive government spending and deficit financing did more than anything else to bring about acceptance of the Keynesian paradigm in the 1940s and 1950s. Even today, not only the general public but most professional economists remain firmly convinced that, as the familiar saying maintains, “the war got the economy out of the Great Depression,” and hence a serious recession such as the present one naturally causes them to recall this supposed “lesson” of economic history. Among many lesser lights, Martin Feldstein, one of the country’s most eminent and influential economists, has recently proposed what amounts to an exercise in military Keynesianism as a stimulus measure.

The fly in this ointment, however, is that the lesson almost everyone has drawn from the events of the 1940s is false; the common belief is a myth. When we take apart the simplistic Keynesian analysis of the war’s effect on the economy and look carefully at what actually happened to the various components of the labor force, the capital stock, and the gross domestic product, we see that the economic events of the war years represent a classic case of a command economy’s sacrificing butter—not to mention life, liberty, and property—for the sake of producing and deploying more guns.

A single graph suffices to give us a more accurate portrayal of the economy’s performance in the 1930s and 1940s (for a complete analysis, see the first five chapters of my 2006 book Depression, War, and Cold War).

As the graph shows, real GDP dropped sharply in the early 1930s, then recovered rapidly after 1933, but it did not reach its high-employment growth trend until 1941, when the nature of the economy’s output (shifting rapidly into war production) was beginning to obscure the meaning of data that purport to measure “real output.” If we accept the standard data, a huge war boom appears to have occurred during the war years, followed by a sharp downturn, concentrated in 1946, after which the economy moved closely along its high-employment growth trend (shown in the figure by the straight line connecting the [logarithms of the] values for 1929 and 1948).

Looking at the private part of GDP—the part with a much clearer meaning, owing to its derivation from freely-made consumer and investor choices about the use of privately owned funds—we see a similar pattern during the 1930s, but a completely different pattern during the 1940s. After 1941, private output of both consumer and investor goods fell to much lower levels and remained submerged far below the high-employment growth trend throughout the war years. Private real output did not exceed its 1941 rate until 1946, when it shot up by about 30 percent in a single year. Afterward, the private economy moved closely along its high-employment growth trend. Real prosperity had been achieved at last, for the first time since 1929.

But wait, the critics protest: didn’t the war wipe out mass unemployment? Of course, it did. However, this elimination of mass unemployment had nothing to do with Keynesian fiscal policy (or, for that matter, with the concurrent, highly expansive monetary policy) and everything to do with the military draft, which pulled the equivalent of 22 percent of the prewar labor force into the armed forces. If the economy has 5–7 million persons unemployed, then drafting 10 million prime-age workers (and thereby inducing millions of others to enlist “voluntarily”) will “solve” the unemployment problem every time. To use the same policy today, the U.S. authorities need only to conscript about 30 million men—not, I daresay, a political idea whose time has come.

Indeed, the idea is preposterous, and so, more generally, is looking to the government’s alleged “large public works program, otherwise known as World War II” as a model of how to deal with today’s economic crisis. Rather than allow ourselves to be mesmerized by a statistically spurious bulge of real GDP during World War II, we are better advised to recall the wartime rationing of many ordinary consumer goods, the shortages or complete production closures of many consumer goods (e.g., automobiles, most consumer durables), the preemption of public transport by the military authorities, and the wage, price, and rent controls that caused, among many other undesirable consequences, drastic deterioration in the quality of many goods and services. Whatever else the war might have accomplished, it certainly did not produce conditions that we may properly describe as genuine prosperity.

IV

Even if policy makers decline to adopt World War II-type policies as remedies for the current recession, the immense magnitude of the present-day military-industrial complex certainly complicates all efforts to effect a recovery, by draining more than $1 trillion a year from the economy’s potential to produce private consumer and producer goods. The current long-running wars and military occupations in Afghanistan and Iraq, which will probably never end, although eventually they may be scaled back somewhat, only add to the economic drain on U.S. resources. So far, more than $1 trillion has been expended for these ill-fated adventures, and their total cost may eventually cumulate to several times this amount, not simply because they, like the U.S. military presence in Japan, Korea, and various European countries, will continue indefinitely, but also because of the need to care for a multitude of physically and psychologically disabled veterans over a span of several decades.

Even if the wars in the Middle East were concluded overnight, however, a huge distortion would continue to affect the U.S. economy, owing to the normal operation of the military-industrial complex and the maintenance of the current armed forces and their far-flung empire of more than 800 large overseas bases. This military hypertrophy reflects not an attempt to pump up the macroeconomy, as military Keynesians would have it, but rather the devotion of U.S. ruling elites to the maintenance of global military hegemony, ultimately capped by the attainment of “full-spectrum dominance”—“control of land, sea, air and space and all attendant resources” over the entire world.

Why do U.S. policy makers seek such god-like control of the planet? To the extent that the military leadership itself contributes to shaping national-security policies, this o’erleaping ambition merely expresses the latest phase of the military’s longstanding maniacal quest for total power—the undoubted ability to win any and all conceivable wars. Among the civilian leadership, the motives range more widely. An important impulse, though it is never mentioned frankly in polite company, is to maintain a foreign military presence configured so as to make the state of Israel as secure as possible. Another abiding interest is to control the worldwide distribution of petroleum, if necessary by bribing, intimidating, or taking military action against the governments of important oil-producing countries, especially in the Persian Gulf region.

Related to this wholly unnecessary quest to control the world’s oil-distribution channels—after all, it does not serve the interests of the oil producers to withhold their product from the world market—is the ambition to play the Great Game by throwing up barriers to the expanding influence of China and India and the residual potential of Russia in southwest Asia, especially in the Caspian Sea region, where vast stores of oil and gas remain to be tapped and brought to market. For more than half a century, U.S. leaders have been obsessed with projecting their country’s power into petro-military adventures of all sorts. However senseless this fixation might seem in a purely economic perspective, we can scarcely deny that the coziest crony capitalists in the oil and related industries have reaped a great deal of income along the way, and owing to their extraordinary political clout, they have every expectation of continuing to reap such income in the future, with the vital assistance of U.S. diplomats and armed forces to grease the skids.

Although the military-industrial-congressional complex is one of the most powerful interest groups in U.S. politics, and we may certainly expect it to struggle forcefully to retain or even to increase the flow of wealth placed at its disposal, the U.S. government’s increasingly precarious financial condition may compel even this powerful coalition to settle for a smaller space at the trough, especially if stagflation sets in as the U.S. economy’s normal condition during the next decade (as I suspect it will). If America’s economic future turns out to be even worse than I now foresee—for example, with rapid inflation, price and capital controls, and a flight from the dollar—then even greater retrenchment of the U.S. military presence abroad will be unavoidable. Such economic ruin would be a heavy price to pay for reining in America’s global hegemony, but, nevertheless, the military retrenchment itself would be a consequence that most of the world’s people would celebrate.

Kristin Davis rose to notoriety as the madam who provided New York Attorney General and Gov. Eliot Spitzer with the escorts that led to his demise. Davis ended up going to jail for providing a business populated by and for consenting adults. Spitzer’s penalty? Possibly getting a show on CNN.

Now Davis herself is running the Empire State’s top slot in Albany, on a platform this is simple and straightforward in libertarian sanity: She wants to legalize (and tax) marijuana and prostitution. For a state as deep in the red as New York, that’s no joke. She has also proposed liberalizing gaming laws and called for gambling casinos in the Catskills.

I built a multi-million dollar escort service from scratch before pleading guilty to promoting prostitution.  Prostitution in New York is estimated to be a $5 Billion a year business. Legalization and a reasonable tax rate could bring $ 1Billion in new revenues to New York State each year. Legalizing Marijuana would reap another $2 Billion a year. Then New York could balance the budget and still cut property and income taxes.

Additionally, she wants to legalize gay marriage because the state shouldn’t discriminate and highlight the inequities of a criminal justice system that treats the politically powerless far worse than the politically powerful. Read more here.

Davis’ official campaign site is here.

Davis has enlisted the aid of legendary political operative Roger Stone for a campaign which has no chance of knocking off presumptive gubernatorial shoe-in Andrew Cuomo. But her run gives voice to a series of issues that deserve to be heard now more than ever. And her run gives form to a vision of smart governance and policy that is not simply provocative but utterly persuasive.

Reason.tv’s Nick Gillespie sat down with Davis to talk about her platform, the hypocrisy of elected officials, and her coming web-based reality show, Madam Governor, which will document her campaign.

Shot by Dan Hayes and Meredith Bragg; edited by Bragg. Approximately 5 minutes.

Go to Reason.tv for downloadable versions. Subscribe to Reason.tv’s YouTube channel for automatic notification when new material goes live.

Earlier this week, I reported here and here about an incident that took place between Ken Moffett and U.S. Rep. Phil Hare, a two-term Democrat from Rock Island, Ill., who is running for re-election in Illinois’ 17th Congressional District.

It seems Congressman Hare has been selling himself on the campaign trail as a tried-and-true military veteran when, in fact, he does not meet the qualifications for “veteran status” (i.e., he is not a person who served in the active military, naval, or air service who was discharged or released therefrom under conditions other than dishonorable).

When Moffett, a veteran from Moline, Ill., asked Hare if he was going to stop telling people that he was a veteran, a heated discussion ensued. It was toward the end of that discussion, Moffett contends, that he heard Hare instruct one of his aides to follow Moffett to his car and get his license plate number so he could find out who he was.

While complete details of the exchange are outlined in a June 2 letter Moffett sent to Blake Chisam, chief counsel and staff director of the House Committee on Standards of Official Conduct, curiosity got the best of me, and I decided to launch an inquiry into what the law says about Congressman Hare’s alleged actions.

Is it legal for a high-ranking elected official like Congressman Hare to obtain personal information about a constituent by having someone within the state’s Department of Motor Vehicles “run” his license plate number through the DMV computer system?

Dave Druker, press secretary for Illinois Secretary of State Jesse White, told me by phone Friday afternoon that — hypothetically speaking, of course — it is not legal for any employee of the State of Illinois’ Department of Motor Vehicles to provide personally-identifiable information about Illinois license plate holders to elected officials, including members of Congress. In fact, he said, providing such information to a congressman — again, hypothetically speaking and not related to the allegations against Hare — constitutes a violation of the federal Driver’s Privacy Protection Act of 1994.

Druker (sounds like “Drucker”) also explained, however, that the law does makes exceptions for members of the news media when it’s determined that providing them with the information is “in the public interest”. Odd. But I digress.

When I tracked down Congressman Hare’s daughter, Amy Hare, by phone at the Illinois Secretary of State DMV facility in Silvis, Ill., I asked her if her father had recently asked her to “run” the plates of any of his constituents through the “Land of Lincoln” DMV database in order to obtain confidential personal information about them. Not surprisingly, she said he had not.

But will he? He might if he takes cues from folks who contribute to his campaign.

The action Hare is alleged to have threatened to take violates the same law that members of UNITE HERE violated, according to a U.S. Supreme Court ruling in April 2009, when they acquired the personal information of CINTAS employees through confidential motor vehicle records.

Not familiar with UNITE HERE? Here’s a primer: It’s a labor union comprised largely of the same kinds of people and espousing the same kinds of radical ideas as their brethren in the Service Employees International Union. It was formed in 2004 when UNITE (formerly the Union of Needletrades, Industrial and Textile Employees) joined forces with HERE (formerly the Hotel Employees and Restaurant Employees International Union).

According to Federal Election Commission records, the congressman has received $10,000 from that UNITE HERE so far in 2010. That’s the same amount he received from the Purple People Beaters SEIU last year.

U.S. Rep. Phil Hare (D-Ill.) is back in the news two months after he was caught on video, saying, “I don’t care about the Constitution.” This time, however, he’s drawn the ire of a military veteran who wants the two-term congressman from Illinois’ 17th Congressional District to stop calling himself a veteran.

In a letter to Blake Chisam, Ken Moffet informs the chief counsel and staff director of the House Committee on Standards of Official Conduct of an incident during which he asked Congressman Hare if he was going to stop telling people that he was a veteran:

On Monday, May 31, 2001, Mr. Hare and I were engaged in a conversation concerning the statements he is making around the district about being a veteran.  After I pointed out that according to the law he is not a veteran, he became very upset and demanded to know my name.  I refused to tell him my name, saying that this was about his claim of being a veteran and not about me.

Mr. Hare then told one of his aids who was with him, to follow me to my car and get my license plate number so he could find out who I was.  I have since been told that Mr. Hare’s daughter works for the DMV.

I then asked Mr. Hare if he was going to stop telling people that he was a veteran.  Mr. Hare again demanded to know my name, and again told his aide to get my name or to follow me to get my license plate number so he could find out who I was, so he could tell all the former reservist what I said.

I asked Mr. Hare if he as a public official was going to use his official office to run name checks on private citizens, in order to intimidate them into not asking questions he did not want to answer.

As Mr. Hare was turning to walk away form me he paused, and turning back to my direction, he glared at me intently, and while leaning forward pointed his finger at me, and in a threatening and intimidating manner said, “I’ll find out who you are!”  Given the nature of Illinois politics and Mr. Hare’s reputation as a mean politician, I felt intimidated by the power of Mr. Hare’s office and what he might do.

The Moline, Ill., resident goes on to explain that Hare became enraged upon learning that, under the law, he doesn’t qualify as a veteran, but I’ll leave it to you to read the rest of the letter.  It’s a juicy one!

Meanwhile, the world waits to see whether or not Congressman Hare continues to claim he is a veteran and, if he does, whether or not Chisam will recommend the House take any action against him for it.

For nearly a year, MyTwoCensus.com was the only media outlet reporting about the problems that the Census Bureau faced in terms of fingerprinting the 1.4 million people who were set to work for the 2010 Census. And we continue that fight today.

In December 2009, I reported that a convicted felon in Alaska was working in a supervisory position for the Census Bureau. This was discovered only after the man killed his mother and then himself. Clearly, this incident should have made calls for improved fingerprinting procedures at the Census Bureau obvious. However, the Census Bureau maintained the status quo and did nothing — fending off my questions and ignoring my concerns.

This incident occurred two months AFTER I originally posted the flaws of the 2010 Census fingerprinting process that were written by child advocate and fingerprinting expert David Allburn, who offered solutions to the Census Bureau that were ultimately refused. Allburn wrote:

(1) The Bureau should announce that trainees are responsible for the “readability” of their own fingerprints, and that fingerprint “failure” due to un-readability (or to discovery of disqualifying criminal history), terminates the canvasser’s employment. This stops attracting ex-felons who would intentionally blur their prints, but it is manifestly unfair to honest workers whose fingerprints are blurred by the inexperienced print-takers. This is fixed by step two.

(2) The Bureau should augment its fingerprint capture by adopting part of our patented “self-capture” technique. Invented by a war veteran, the method has applicants use an extra minute or two to make their own set of “backup prints”, observed and authenticated by the print-taker. Barcoded and enclosed with the cards forwarded to the scanning center, those self-captured prints are readily available for fixing any individual print impressions found “bad.” Well tested, this gets the cards through the FBI with the same dependability as live-scanning offers, typically twenty times better than the old rubber-stamp method now in use.

Only after a handicapped woman was raped by a 2010 Census employee and a sex offender was caught going door-to-door did the Census Bureau decide to change their policies. Is that what it takes to create “change” in America?

The infamous Tammany Hall boss George Washington Plunkitt distinguished between “honest graft” and “dishonest graft.” Dishonest graft, he said, meant actual theft from the treasury, or shaking down criminals for bribes. Honest graft, on the other hand, simply meant taking advantage of private deals that arose in the course of public office. “I might sum up the whole thing by sayin’: I seen my opportunities and I took ‘em,” he said.

Former Illinois governor Rod Blagojevich starts his federal trial today. And the Illinois Democrats who clung to his coattails for years are desperate to pretend they don’t know him. Back in 2003, Rep. Jan Schakowsky proclaimed of Blago: “He really is very smart. I don’t laugh at the idea [of his running for President] at all.” She added that when he walked into a room, “there was this crackle of electricity. Everyone wanted to touch him.”

That electricity prompted Rep. Schakowsky to donate $28,000 to Blago’s campaigns for governor. Her husband, convicted felon and political strategist Robert Creamer, made $541,000 helping Blago get elected in 2002. She lobbied him heavily in November 2008 in the hope that he would appoint her to fill the Senate seat being vacated by Barack Obama, and is thought to be “Senate Candidate 3” in the original criminal complaint.

Now she is trying to laugh it off, nervously telling the Politico that the trial will be a “soap opera.”  She and other Illinois Democrats are trying to pretend that even though Blago’s alleged crimes involved prominent figures in federal, state, and local government, he was a lone wolf. But they are nervous, because the connections are there. (Is it just a coincidence that President Obama chose last weekend, of all others, to visit Chicago?)

The story they are all sticking to is that Blago is a special case–and he has done his best to prove them right. Rather than laying low, he has used every camera and open mic to denounce the federal prosecutor and the allies who abandoned him. Yet selling the Senate seat–the “f***ing valuable thing,” to quote Blago–was what Plunkitt would have recognized as “honest graft.” It is the rule in Chicago, not the exception.

David Axelrod said it himself in an article he penned for the Chicago Tribune in August 2005. Back then, he was advising both Obama and Mayor Richard Daley, and defended Daley against allegations of corruption. Trading favors for votes, Axelrod said, was not a  scourge, but a better way of doing business. Political grease made government “a well-oiled machine,” he wrote, elevating corruption from a problem to a philosophy.

Blago has claimed, repeatedly, that he will be vindicated. He may be right, in one sense: he will be brought down for “honest graft,” not the “dishonest” kind. Along the way, the public will get a close-up view of how Axelrod’s “well-oiled machine”–now exported to Washington, DC–really works. And people are more curious now than ever, because in the midst of a budget crisis at every level, we are aware of the true costs of corruption.

Tammany Hall fell when it could no longer pay the mortgage on its lavish headquarters. In the same way, today’s political bosses are up against the financial reality of massive public debt and underfunded pensions. They know the federal spending can only last so long; they’re just taking their opportunities, like Blago and Plunkett did–and like the White House hoped Joe Sestak and Andrew Romanoff would. November brings a different kind of opportunity–an opportunity for voters to bring about real reform. It is a chance that may not come again.

“Leadership is practiced not so much in words as in attitude and in actions.”

True leadership is a rare attribute.  While many people have exhibited an ability to get elected, even to the presidency, that doesn’t make them a great leader.  To demonstrate the point, ask yourself how many great presidents we have had over the last 100 years.  If you count four or less, and you should, then you understand the point.  Based on nearly a year and a half of the Obama Presidency, it is likely he will be closer to the bottom four, instead of the top four, as he demonstrates his leadership by litigation mentality.

Leadership by litigation is reference to his penchant to litigate, not solve problems – to attenuate them, not end them.  Consider that Obama, the attorney, is facing a growing number of crises:  (1) a failing economy, (2) a growing number of terrorist attacks, and (3) the gulf oil crisis.  Each of those crises is getting worse, not better, and it is Obama’s lack of leadership skills that are to blame.

Working backwards, rather than demonstrate action on the gulf oil spill, i.e. approving Bobby Jindal’s request to form barrier islands or to approve the Saudi mid-ocean cleanup method, Obama is stalling on those suggestions and many more – but he is willing to file a lawsuit against BP.

With regard to terrorist attacks, the facts demonstrate that, despite Obama’s talking to the World, the number of domestic attacks rose dramatically.  Obama’s response? – have attorneys prosecute them.  And on the economy, Obama has done nothing more than talk and pander – mostly blaming Business and Bush for the problem but not acting in rational manner – unless you are one of the few people in the world who think that mimicking Greece represents economics.

At the outset of this editorial, I quoted the legendary CEO of International Telephone and Telegraph (ITT) Harold S. Geneen.  He said that “Leadership is practiced not so much in words as in attitude and in actions.”  That could be a diplomatic way of saying you cannot talk your way out of a challenge – at least not for long – you must act.

All of which brings us back to attorneys.  Many in that profession are far more interested in fighting over issues rather than resolving them.  After all, that is how they make money: fighting.  It becomes their mentality.  That is why, in part, the American historian Will Durant famously and derisively said that “[a]nimals claw each other to death; men consume each other by due process of law.”

The Presidency should be a place where problems are resolved – not argued.  That is why true leadership is not about litigating but about being decisive and acting – and boldly at that.

Admiral Grace Murray Hopper once said, “You manage things; you lead people.”  Lawsuits are managed – the American people, and the crises they face, have seen Obama the attorney, what we need is a leader.

“Leadership is practiced not so much in words as in attitude and in actions.”

True leadership is a rare attribute.  While many people have exhibited an ability to get elected, even to the presidency, that doesn’t make them a great leader.  To demonstrate the point, ask yourself how many great presidents we have had over the last 100 years.  If you count four or less, and you should, then you understand the point.  Based on nearly a year and a half of the Obama Presidency, it is likely he will be closer to the bottom four, instead of the top four, as he demonstrates his leadership by litigation mentality.

Leadership by litigation is reference to his penchant to litigate, not solve problems – to attenuate them, not end them.  Consider that Obama, the attorney, is facing a growing number of crises:  (1) a failing economy, (2) a growing number of terrorist attacks, and (3) the gulf oil crisis.  Each of those crises is getting worse, not better, and it is Obama’s lack of leadership skills that are to blame.

Working backwards, rather than demonstrate action on the gulf oil spill, i.e. approving Bobby Jindal’s request to form barrier islands or to approve the Saudi mid-ocean cleanup method, Obama is stalling on those suggestions and many more – but he is willing to file a lawsuit against BP.

With regard to terrorist attacks, the facts demonstrate that, despite Obama’s talking to the World, the number of domestic attacks rose dramatically.  Obama’s response? – have attorneys prosecute them.  And on the economy, Obama has done nothing more than talk and pander – mostly blaming Business and Bush for the problem but not acting in rational manner – unless you are one of the few people in the world who think that mimicking Greece represents economics.

At the outset of this editorial, I quoted the legendary CEO of International Telephone and Telegraph (ITT) Harold S. Geneen.  He said that “Leadership is practiced not so much in words as in attitude and in actions.”  That could be a diplomatic way of saying you cannot talk your way out of a challenge – at least not for long – you must act.

All of which brings us back to attorneys.  Many in that profession are far more interested in fighting over issues rather than resolving them.  After all, that is how they make money: fighting.  It becomes their mentality.  That is why, in part, the American historian Will Durant famously and derisively said that “[a]nimals claw each other to death; men consume each other by due process of law.”

The Presidency should be a place where problems are resolved – not argued.  That is why true leadership is not about litigating but about being decisive and acting – and boldly at that.

Admiral Grace Murray Hopper once said, “You manage things; you lead people.”  Lawsuits are managed – the American people, and the crises they face, have seen Obama the attorney, what we need is a leader.

“Leadership is practiced not so much in words as in attitude and in actions.”

True leadership is a rare attribute.  While many people have exhibited an ability to get elected, even to the presidency, that doesn’t make them a great leader.  To demonstrate the point, ask yourself how many great presidents we have had over the last 100 years.  If you count four or less, and you should, then you understand the point.  Based on nearly a year and a half of the Obama Presidency, it is likely he will be closer to the bottom four, instead of the top four, as he demonstrates his leadership by litigation mentality.

Leadership by litigation is reference to his penchant to litigate, not solve problems – to attenuate them, not end them.  Consider that Obama, the attorney, is facing a growing number of crises:  (1) a failing economy, (2) a growing number of terrorist attacks, and (3) the gulf oil crisis.  Each of those crises is getting worse, not better, and it is Obama’s lack of leadership skills that are to blame.

Working backwards, rather than demonstrate action on the gulf oil spill, i.e. approving Bobby Jindal’s request to form barrier islands or to approve the Saudi mid-ocean cleanup method, Obama is stalling on those suggestions and many more – but he is willing to file a lawsuit against BP.

With regard to terrorist attacks, the facts demonstrate that, despite Obama’s talking to the World, the number of domestic attacks rose dramatically.  Obama’s response? – have attorneys prosecute them.  And on the economy, Obama has done nothing more than talk and pander – mostly blaming Business and Bush for the problem but not acting in rational manner – unless you are one of the few people in the world who think that mimicking Greece represents economics.

At the outset of this editorial, I quoted the legendary CEO of International Telephone and Telegraph (ITT) Harold S. Geneen.  He said that “Leadership is practiced not so much in words as in attitude and in actions.”  That could be a diplomatic way of saying you cannot talk your way out of a challenge – at least not for long – you must act.

All of which brings us back to attorneys.  Many in that profession are far more interested in fighting over issues rather than resolving them.  After all, that is how they make money: fighting.  It becomes their mentality.  That is why, in part, the American historian Will Durant famously and derisively said that “[a]nimals claw each other to death; men consume each other by due process of law.”

The Presidency should be a place where problems are resolved – not argued.  That is why true leadership is not about litigating but about being decisive and acting – and boldly at that.

Admiral Grace Murray Hopper once said, “You manage things; you lead people.”  Lawsuits are managed – the American people, and the crises they face, have seen Obama the attorney, what we need is a leader.

Rand Paul’s controversial remarks about the 1964 Civil Rights Act illustrate what I have been saying for years, that Republicans would benefit tremendously from knowing and appreciating the heritage of our Grand Old Party.  That landmark legislation was the culmination of a century of efforts by Republicans to protect African-Americans from their Democrat oppressors.  Let’s look at the facts.

On his deathbed in 1874, Senator Charles Sumner (R-MA) told a Republican colleague: “You must take care of the civil rights bill – my bill, the civil rights bill.  Don’t let it fail.”  In March 1875, the Republican-controlled 43rd Congress followed up the GOP’s 1866 Civil Rights Act and 1871 Civil Rights Act with the most comprehensive civil rights legislation ever.  A Republican president, Ulysses Grant, signed the bill into law that same day.

Among its provisions, the 1875 Civil Rights Act banned racial discrimination in public accommodations.  Sound familiar?  Though struck down by the Supreme Court eight years later, the 1875 Civil Rights Act would be reborn as the 1964 Civil Rights Act.

During the twenty years of the FDR and Truman administrations, the Democrats had refused to enact any civil rights legislation.  In contrast, President Dwight Eisenhower signed the 1957 Civil Rights Act, which had been written by his Attorney General, a former Chairman of the Republican National Committee.  The original draft would have permitted the federal government to sue anyone violating another person’s constitutional rights, but this powerful provision would have to wait until the 1964 Civil Rights Act.  The bill had to be weakened considerably to secure enough Democrat votes to pass, so violations would be civil, not criminal offenses, and penalties were light.  Vice President Richard Nixon helped overcome a Democrat filibuster in the Senate.  The GOP then strengthened enforcement with its 1960 Civil Rights Act.

Clever strategizing had won him the support of most African-American voters, but it took President John Kennedy (D-MA) nearly two years to make good on even one of his promises to them.  He refused to attend a dinner commemorating the 100^th anniversary of the Emancipation Proclamation and turned down Martin Luther King’s invitation to speak at the March on Washington.  He did name Thurgood Marshall to the federal bench, but that was to an appeals court in New York, far from the fray in southern states.  Kennedy did not honor his campaign promise to submit to Congress a new civil rights bill soon after taking office.

While the Kennedy administration was ignoring its campaign pledges, the Republican minority in Congress introduced several bills to protect the constitutional rights of African-Americans.  In January 1963, congressional Republicans introduced a sweeping civil rights bill to enact what Democrat opposition had prevented from being included in the 1957 and 1960 laws.  Threatened by this initiative, the president finally acted.  Hastily drafted in a single one-nighter, the Kennedy bill fell well short of what the GOP had introduced the month before.  Many Democrats were preparing a protracted Senate filibuster of this civil rights bill, which was in a committee of the House of Representatives when John Kennedy was murdered in November 1963.

The 1964 Civil Rights Act was an update of Charles Sumner’s 1875 Civil Rights Act.  In striking down that law in 1883, the Supreme Court had ruled that the 14^th Amendment was insufficient constitutional authorization, so the 1964 Civil Rights Act had to be written in such a way as to rely on the interstate commerce clause for its constitutional underpinning.  The 1964 Act guaranteed equal access to public facilities and banned racial discrimination by any entity receiving federal funding, thereby extending coverage to most every hospital, school and government contractor.  Also banned was racial discrimination in unions and in companies with more than twenty-five employees.  Enforcement provisions were much more rigorous than those of the 1957 and 1960 Acts.

Republicans supported the 1964 Civil Rights Act much more than did the Democrats.  Contrary to Democrat myth, Everett Dirksen (R-IL), the Senate Minority Leader – not President Lyndon Johnson – was the person most responsible for its passage.  Mindful of how Democrat opposition had forced Republicans to weaken their 1957 and 1960 Civil Rights Acts, President Johnson promised Republicans that he would publicly credit the GOP for its strong support.  Johnson played no role in the legislative fight.  In the House of Representatives, the 1964 Civil Rights Act passed with 80% support from Republicans but only 63% support from Democrats.

In the Senate, Dirksen had no trouble rounding up the votes of most Republicans, and former presidential candidate Richard Nixon lobbied hard for passage.  On the Democrat side, the Senate leadership did support the bill, while the chief opponents were Senators Sam Ervin (D-NC), Al Gore (D-TN) and Robert Byrd (R-WV).  Senator Byrd, whom Democrats still call “the conscience of the Senate,” filibustered against the 1964 Civil Rights Act for fourteen straight hours.  At a meeting held in his office, Dirksen modified the bill so it could be passed despite Democrat opposition.  He strongly condemned the Democrat-led 57-day filibuster: “The time has come for equality of opportunity in sharing of government, in education, and in employment.  It must not be stayed or denied.  It is here!”

Along with most other political leaders at the time, Johnson, credited Dirksen for getting the bill passed: “The Attorney General said that you were very helpful and did an excellent job… I’ll see that you get proper attention and credit.”  At the time, for instance, The Chicago Defender, a renowned African-American newspaper, praised Senator Dirksen for leading passage of the 1964 Civil Rights Act.

The struggle for civil rights was not finished, however, as most southern states remained under the control of segregationist Democrat governors, such as George Wallace (D-AL), Orval Faubus (D-AR) and Lester Maddox (D-GA).  Full enforcement of the 1964 Civil Rights Act would not arrive until the Republican political ascendancy in the South during the 1980s.

To quote from Back to Basics for the Republican Party, “The more we Republicans know about the history of our party, the more the Democrats will worry about the future of theirs.”  See www.grandoldpartisan.com for more information.

From the Associated Press:

Conservative activist-videographer James O’Keefe said video he shot of conversations with staffers of U.S. Sen. Mary Landrieu was deleted when his cell phone was returned after he and three others pleaded guilty to charges in a caper he orchestrated at the Democrat’s New Orleans office.

A spokeswoman for the U.S. attorney’s office said Saturday that U.S. Magistrate Daniel Knowles III ordered the footage removed. O’Keefe made the claim Friday in a posting on his Twitter social networking site.

O’Keefe, 25, and the others pleaded guilty on Wednesday to misdemeanor charges of entering federal property under false pretenses. They were sentenced by Knowles.

They were sentenced to probation, community service and fines. O’Keefe received the heaviest sentence, three years probation, 100 hours of community service and a $1,500 fine.

The FBI has said O’Keefe used his cell phone to try to capture video of two others who posed as telephone repairmen and asked to see the phones at Landrieu’s office. O’Keefe has said the group was trying to investigate complaints that constituents calling Landrieu’s office couldn’t get through to criticize the Democrat’s support of a health care reform bill.

O’Keefe, who apologized after his sentencing for raising security concerns at the federal building that houses Landrieu’s office, said he would continue his undercover work.

Continue reading here.

One would think that the President of the United States would have enough respect for the people who put him in office to offer an explanation that was remotely believable.

The White House released an explanation of the Job offer. The claim is that Rahm Emanuel sent Bill Clinton to meet with Congressmen Sestak to offer an unpaid advisory position which he would hold along with his congressional job if he were to give up his quest for the Democratic nomination.

The letter issued by the White House Attorney Robert Bauer (embedded below) says in part:

“We found that, as the Congressman has publicly and accurately stated, options for Executive Branch service were raised with him. Efforts were made in June and July of 2009 to determine whether Congressman Sestak would be interested in service on a Presidential or other Senior Executive Branch Advisory Board, which would avoid a divisive Senate primary, allow him to retain his seat in the House, and provide him with an opportunity for additional service to the public in a high-level advisory capacity for which he was highly qualified. The advisory positions discussed with Congressman Sestak, while important to the work of the Administration, would have been uncompensated.”

“White House staff did not discuss these options with Congressman Sestak. The White House Chief of Staff enlisted the support of former President Clinton who agreed to raise with Congressman Sestak options of service on a Presidential or other Senior Executive Branch Advisory Board. Congressman Sestak Declined the suggested alternatives, remaining committed to his Senate candidacy.”

Come on, do they really mean to tell us that it took the best and brightest in America ten weeks to come up with that?

Whatever you think of him politically, Rahm Emanuel is a smart politician. Based on their Sestak scenario, the White House wants America to believe that Emanuel truly believed he could talk Sestak out of running for the Senate by offering an unpaid advisory position, and he would serve in that role on top of his regular Congress job. “Hey Joe, I know you want a promotion to the Senate, but we have something better for you, quit the race and we will let you get a second job. And guess what? This second job has no power and you don’t get paid. What do you say?”

Sorry for this explanation to be true, one would have to believe that Emanuel is a political moron, or he thinks that Sestak is the most gullible man alive.

The White House version of the job offer tale is inconsistent with the original story Sestak told back in February.

KANE: “Were you ever offered a federal job to get out of this race?”

SESTAK: “Yes.”

KANE: “Was it secretary of the Navy?”

SESTAK: “No comment”

Later Kane asks again, “Was there a job offered to you by the White House?” to which Sestak nods and replies “yes, someone offered it.”

Kane asks “It was big right?” Sestak replies, “Let me ‘no comment’ on it.”

“Was it high-ranking?” Kane asked. Sestak said yes.

Notice in February Sestak said he was offered a high ranking position by the White House, but the latest version of the proposal was a non-paid advisory position offered by a former President.

If the new official explanation is true, why did the White House need a conversation with Sestak’s brother two days before the announcement to coordinate stories? Why did President Clinton have lunch with Obama the day before the new tale was announced? Why did Sestak play a cat and mouse game with the press for all of these ten weeks, not giving a complete explanation of the job offer until the administration issued something in writing.

It is not clear whether offering a big or small job in exchange for Sestak to drop out of the race, was a misdemeanor, felony, or totally legal “politics as usual” deed . What is clear, is t the explanation offered by the White House and Sestak today does not pass the “smell test” especially when one remembers that the same charges were directed toward the Obama administration in another Senate race.

On Sept. 27, 2009, Mike Riley of the Denver Post reported that Jim Messina, Obama’s deputy chief of staff, offered Colorado Senate candidate Andrew Romanoff a position in the administration if he canceled plans to run for the Democratic nomination against incumbent Sen. Michael Bennet. The paper said the job offer which specified particular jobs, included a possible job at USAID, the foreign aid agency (unlike the tale told about the Sestak offer, Romanoff was offered a paid position).

The report claimed Messina contacted Romanoff right after news leaked in August 2009 that Romanoff would make a primary run against the incumbent, Bennet. Romanoff said no and announced his candidacy. Obama immediately endorsed Bennet who was appointed to his senate seat eight months earlier when Ken Salazar became Obama’s secretary of the Interior.

The White House denied that Romanoff had been offered a job. “Mr. Romanoff was never offered a position within the administration,” said White House spokesman Adam Abrams.

Yet several top Colorado Democrats described Messina’s outreach to Romanoff to The Post, including the discussion of specific jobs in the administration. They asked for anonymity because of the sensitivity of the subject.

Romanoff declined to discuss any such communication and said the only job he’s focused on is “representing the people of Colorado in the United States Senate.”

The Romanoff report was never investigated by beyond the Denver Post, and on its own is not proof of White House impropriety. It all could be very innocent. Perhaps the human resources director of USAID was staying up at night desperately searching for someone with Andrew Romanoff’s qualifications. And perhaps that nightmarish search just happened to take place at the same time Mr. Romanoff was considering his bid against Senator Bennet.

Of course to believe that entire scenario happened as described above, one has to believe in coincidences, the tooth fairy, and the story told by the White House today. Even if you are inclined to believe the White House/Sestak story, the fact that a similar claim was made in Colorado has to give one pause.

Thirty-six years and one week ago a minor burglary in the Watergate Hotel destroyed the trust we had in our government, and brought down a popular president of the United States. It was not the crime itself that brought down Richard Nixon; it was the subsequent lies and cover-up. Based on the explanation we received today, before this Sestak thing is over, we may learn that history does indeed repeat itself.

SestakMemo

The following is a document that James O’Keefe sent to me last night and has authorized me to publish. It is O’Keefe’s version of events in New Orleans. I believe this is the first time anywhere that he has publicly given his full statement of what occurred.

The document was drafted by lawyers based on O’Keefe’s statements, and was intended to be offered as the factual basis for his plea. O’Keefe confirmed for me that this document is an accurate account of what happened.

What Really Happened in New Orleans

Factual Basis

On January 25, 2010, Messrs. James O’Keefe, Stan Dai, Joe Basel, and Michael Flanagan (collectively “Defendants”) entered the Hale Boggs Federal Building located at 500 Poydras Street, New Orleans, Louisiana (“Hale Boggs Building”), with no intent to commit a felony, but rather an intent to engage in political speech with respect to pending national healthcare legislation (the “Healthcare Bill”). During the several days before their entry to the Hale Boggs building, Defendants discussed opportunities to engage in independent journalism and political advocacy. One of the ideas raised during those discussions was a method to test the truthfulness of Senator Landrieu’s statements as to the reason for the inability of Tea Party members and other Louisiana constituents to contact her staff on the telephone to discuss her vote on the Healthcare Bill. The Defendants were advised that this was a recent story in the news in New Orleans.

Prior to the Defendants’ arrival in New Orleans there had been picketing of the Senator’s office by Tea Party Members and others. The controversy about Senator Landrieu’s phones was described in a prior news article as follows:

“We were stunned to learn that so many phone calls to Senator Landrieu have been unanswered and met with continuous busy signals,” Perkins said. “We asked them to call their Senators. They could get through to Senator Vitter, but not Senator Landrieu.”

“Our lines have been jammed for weeks, and I apologize,” Landrieu said in interview after giving a speech on the Senate floor Tuesday.

As a result, the Defendants devised what was, in retrospect, a poorly thought out plan to test the veracity of Senator Landrieu’s statements. The plan settled upon was for two of the Defendants to dress as telephone repairmen and, wearing an audio and video camera hidden in one of the hard hats they wore as part of their disguise, enter Senator Landrieu’s office and interview her staff while a third Defendant recorded the interviews using a second audio and video camera.

The group devised a plan involving disguises because they believed that if they simply entered Senator Landrieu’s office and identified themselves as journalists they would not likely receive truthful answers. They thought it likely that Senator Landrieu’s staff would be more candid with a repairman than a reporter. Looking back, the Defendants now recognize clearly that this plan was imprudent, and produced unintended security concerns and consequences that none of the Defendants anticipated. The Defendants agree that they should have anticipated these consequences and regret that they decided to proceed in that fashion.

Upon entering the Hale Boggs Building, the Defendants presented their real drivers license identifications to security officials and were not questioned as to the purpose of their visit to the Hale Boggs Building or where in the Hale Boggs Building they were going. Before passing through security, the Defendants placed all of their equipment (including all recording and video devices) through the security x-ray machines, as requested by the Hale Boggs Building security employees.

After passing through the Hale Boggs Building security checkpoint, the Defendants proceeded to the 10th floor, where Senator Landrieu’s office is located. Senator Landrieu’s office was and is open to the public and the Defendants entered through its open door. They spoke with members of Senator Landrieu’s staff, then separately left the Senator’s office and exited the Hale Boggs Building.

A short time later, the Defendants were “detained” by Federal Marshals. They believed they would be released when the US Marshals realized that they were journalists and immediately explained to the commanding US Marshal that they were journalists investigating whether Senator Landrieu wasn’t answering her calls.

Despite truthfully explaining, in detail, to the FBI and Federal Marshals that their purpose was solely to ask questions (and record the questions and answers) of Senator Landrieu’s staff regarding recently published statements by constituents that calls to Senator Landrieu’s staff concerning her vote in favor of the pending Healthcare Bill were not being returned and about the Senator’s public statement that her office phones had been “jammed,” Defendants were charged in a criminal complaint with a felony:

by false and fraudulent pretense enter and attempt to enter real property belonging to the United States of America with the intent to commit a felony: to wit, willful and malicious[s] interference with a working and use of a telephone system operated and controlled by the United States; in violation of Title 18 United States Code Section(s) 1036(a)(1), 1362, and 2.

At approximately 8 pm, the Defendants were taken from the Federal Building to the St. Bernard Parish Jail. The Defendants remained in jail overnight and were then transported the next afternoon in red jumpsuits and hand and leg irons back to the Hale Boggs Building where they were “arraigned” before Magistrate Judge Louis Moore, Jr., who released them on personal bonds of $10,000.

O’Keefe clarified to me that he and his companions entered only the public reception area of Sen. Landrieu’s office.

O’Keefe’s attorney Michael Madigan is scheduled to appear on Fox News Sunday tomorrow morning to discuss the prosecution.

More to come later today, including a post about the First Amendment implications of the judge ordering the destruction of the footage of O’Keefe’s foray into Landrieu’s offices, and a post about New York Magazine’s retraction of the errors I highlighted here the other day.

It’s a court document signed by the Assistant U.S. Attorney representing the Government: The document can be read in its entirety here.

As I noted in a more detailed post below, the Government sought to bury this admission by omitting it from their press release, and attempting to avoid reading it aloud in court when setting forth the factual basis. I have updated that post to note that I have now obtained the filed version of the document, with the signature of the Government’s representative. Now I think it’s time to start asking the U.S. Attorney’s Office why they tried to hide this language from the public. It’s also time to ask Big Media why they aren’t reporting on this.

Over at Forbes I recently wrote about the union plan to organize your neighborhood fast food joint, which could turn the process of ordering a Number 3 with Coke into a culinary trip to the DMV. Well, maybe now we know why: they have been laying the groundwork to organize the entire food chain, as it were, since they have organized a pot shop in Oakland. Now you can Super Size it and smoke a spliff without ever crossing a picket line.

The U.S. Attorney’s Office for the Eastern District of Louisiana has filed a court document admitting that James O’Keefe did not intend to tamper with the phones at Mary Landrieu’s office, or commit any other felony.

Oh — and the good folks at the Department of Justice don’t particularly want you to know that. This post reveals that, at O’Keefe’s hearing, the Assistant U.S. Attorney tried not to read that part of the document in court. What’s more, the U.S. Attorney pointedly omitted this critical information from their press release.

The news of the Government’s admission broke yesterday, when Big Journalism’s Larry O’Connor reported that a court document filed in James O’Keefe’s criminal case bearing the title “Final Factual Basis” contains the following language:

In this case, further investigation did not uncover evidence that the defendants intended to commit any felony after the entry by false pretenses despite their initial statements to the staff of Senatorial office and GSA requesting access to the central phone system. Instead, the Government’s evidence would show that the defendants misrepresented themselves and their purpose for gaining access to the central phone system to orchestrate a conversation about phone calls to the Senator’s staff and capture the conversation on video, not to actually tamper with the phone system, or to commit any other felony.

This news, which O’Connor relayed at the end of a post about Media Matters’ dishonesty, is a significant piece of news that deserves its own post. It is especially noteworthy because this paragraph comes from a version of the facts that the Government has agreed to by way of stipulation. The document contains the following language showing the Government’s agreement:

Both the Government and the defendants, JOSEPH BASEL, STAN DAI, ROBERT FLANAGAN, and JAMES O’KEEFE, do hereby stipulate and agree that the above facts are true and that they set forth a sufficient factual basis for the crime to which the defendants are pleading guilty.

In other words, the Government has admitted that it has no evidence that James O’Keefe ever intended to tamper with Landrieu’s phone system, or commit any other felony.

This post reveals, for the first time, the entire document setting forth the facts stipulated to by the Government:

OKeefe-Factual-Basis-Final-Signed-Version –

What’s more, the Government apparently didn’t want to publicize this embarrassing part of the agreed-upon facts, omitting any mention of it in their press release — and attempting not to read it in open court, until the defense attorneys caught the AUSA’s omission.

O’Keefe told me last night that Assistant U.S. Attorney Ginsberg summarized the stipulated factual basis in open court, but initially omitted any mention of the paragraph I just quoted. (Consistent with O’Keefe’s statement that the AUSA read the statement in open court, there is a minute order which states: “Factual basis for guilty plea provided by summarized testimony of Jordan Ginsberg, AUSA.”)

According to O’Keefe, attorneys for Stan Dai and Joe Basel then asked the court to have the prosecutor read that paragraph aloud. O’Keefe told me that the prosecutor then somewhat reluctantly read the statement to the court. O’Keefe told me: “I was concerned the reporters in the back, thinking the statement was over, would not be paying attention as the prosecutor obliged.”

Since I can find no mention of the paragraph in any reported Big Media news story, it appears that O’Keefe’s concern was justified.

Rubbing salt in the wound, the U.S. Attorney’s Office then issued a press release that summarized the facts in the stipulated factual basis — but which rather pointedly omitted the very same language that the Assistant U.S. Attorney was reluctant to read aloud in court . . . the language which shows O’Keefe and his companions never intended to tamper with the phones or commit any felony.

And then, of course, perennial O’Keefe ankle-biter Brad Friedman came along and falsely claimed that the heavily edited and deceptive press release showed that O’Keefe had indeed engaged in a “wiretap plot.” Friedman was, of course, lying — and his libel was oafishly republished by Media Matters Senior Fellow Eric Boehlert on his Twitter feed.

Media Matters Senior Fellow Eric Boehlert, caught with his pants down once again.

So, in conclusion:

• The Government charged O’Keefe with a felony when there was never any evidence to back it up.

• The Government finally pled it out to a misdemeanor because the Government had no choice — because the Government lacked evidence of felonious intent on the part of O’Keefe.

• The judge ordered the tape, which would have shown that O’Keefe was merely doing a video sting, to be destroyed.

• The Assistant U.S. Attorney tried not to read language showing O’Keefe never intended to tamper with the phones.

• The U.S. Attorney’s office omitted any reference to that language in their press release.

• Brad Friedman and Media Matters Senior Fellow Eric Boehlert then dishonestly trumpeted the dishonest press release as evidence of a “wiretap plot.”

Did I leave anything out of the story of how this man was shamefully treated by the Government, the judicial system, and the lying scoundrels on the Internet? Or does that pretty much cover it?

We’ve already noted how two HuffPo reporters ran defense for SEIU: First there was Erica Payne, HuffPo blogger, lover of all things Media Matters, who appeared on Fox News to try to shift blame of SEIU antics onto the tea party.

We’ve also read how HuffPo blogger Arthur Delaney was embedded with SEIU to cover their home invasion of Bank of America employee Greg Baer which terrified Baer’s young son who hid in the bathroom (we’re still waiting for the Carnahan Coffin-Gate drama queens to repeat their hysterics over this but so far, nothing); Delaney became the first to parrot SEIU’s baseless accusation of “conflict of interest” at Fortune columnist Nina Easton after she published her firsthand account, as Baer’s neighbor, of the same protest. Monday we exposed Huffington Post’s own conflict of interest when we discovered that SEIU had paid the site $15,000 categorized as “political activities and lobbying.”

Is this what SEIU money is buying? Two HuffPo bloggers running their media defense? Of course, this could be a routine advertising expense. But, Big Government has learned that the Huffington Post has inserted themselves into SEIU’s most notorious violent incident: the Kenneth Gladney beating of last August.

Earlier this month at rally was staged on behalf of the men accused of assaulting Gladney. Defendant Elston McCowan spoke, along with others who are pressuring the county prosecutor’s office to drop the charges against the men. We know that SEIU took care of Perry Molens and McCowan criminal legal expenses despite their claim of having sent no staff to the townhall. This information came directly from McCowan writing in an email that “[SEIU] is paying for my legal fees in defending myself and any others charged with assault associated with the Union.” That’s exactly the kind of thing you want to get a handle on before it’s repeated in the mainstream press.

During this rally, a woman named Jeanine Molloff identified herself as being with Huffington Post and took to the megaphone to apparently speak on behalf of the website declaring: “We will be following this and we will make it a civil rights issue.” She even joined in the chant popularized by Jesse Jackson and Maxine Waters in the wake of the Los Angeles riots: “No justice! No peace!”

It’s interesting to note that there exists a Jeanine Molloff who signed a 9/11 Truther petition:

Like HuffPo’s Jeanine Molloff who describes herself as “a veteran urban educator,” the signer on the truther site describes herself as an “Educator & Online Journalist” and writes:

“I do not profess to possess technical expertise, but as an online Journalist, I support the work of those professionals who have such degrees. I volunteer my services to help disseminate the story. God bless all of you who seek the truth.”

Unlike certain media outlets, Big Government won’t assume, without 100% certainty, that these two same-named, same-profession, same city women are the same person; we merely think that the similarity is interesting. What’s more fascinating than a possible 9-11 Truther and HuffPo journalist threatening political pressure to influence a county prosecutor to drop criminal charges against the staff of SEIU?

Is Huffington Post running defense for SEIU? SEIU’s insurance carrier is allegedly paying workmen’s comp for McCowan, which, for that to be possible, means that McCowan was considered a working staffer the night that Gladney was beaten, there for the townhall as part of his job. It would look horrible for an SEIU worker to be convicted of assault while on the clock at the direction of SEIU. And then to have OFA, the campaign arm of the White House ordered for a push back at townhalls (more) – it’s no wonder that Huffington Post and Media Matters want these charges dropped before the trial. The question is whether or not the aforementioned $15,000 paid to Huffington Post under the category of “political activities and lobbying” was for such a purpose.

Due to the above mentioned precedence that the Huffington Post has with the Baer incident, I’m curious as to whether or not the Huffington Post blogger’s speech on behalf of the website and her energetically supportive presence at the rally signifies that HuffPo has a working relationship with SEIU.

If true, it would seem that $15k goes a long way in new media lobbying (or advertising).

Attorney-client communications are among the most sacred in the American system of jurisprudence, so when James O’Keefe’s lawyers noticed at least two instances of privileged communication between them and their client appearing in the media, they wrote to Assistant U.S. Attorney Jan Mann in New Orleans: “O’Keefe materials improperly provided to media.”

The information that I have confirmed was disclosed to the media appears to be intentionally calculated to foment negative public opinion against Mr. O’Keefe, presumably in an unethical effort to prejudice any criminal proceedings… a clear violation of Chapters 1-7.500 and 1-7.600 (E) of the United States Attorneys’ Manual as well as a prosecutor’s ethical obligations…

When O’Keefe and three others were arrested in January, his computer and cell phone were seized, under the completely false premise that they were surveillance devices, and it appears that the documents came from them. If true, as O’Keefe’s lawyers note, this would constitute an outrageous violation of law-enforcement ethics as well as “severe prosecutorial misconduct.”

The letter follows:

March 4 letter to Jan Mann-1

As you know, last week SEIU staged a protest at the home of an attorney for Bank of America. On a quiet Sunday in the Maryland suburbs of DC, SEIU sent 500 protesters onto the front lawn of the home of Greg Baer, a former Treasury official in the Clinton Administration. Mr. Baer wasn’t at home but, unfortunately, his 14 year old son was. The protesters succeeded in terrorizing the boy.

Let me quickly digress to point out that Bank of America is SEIU’s largest creditor. Under the leadership of Andy Stern, SEIU leveraged itself to the hilt, largely to support Democrat campaign efforts, and now owes the bank around $100 million. The loan payments are likely playing havoc with the union’s finances. (Rich that SEIU thinks it has a credible voice on financial reform, given that their own behavior is a set-piece for much of what went wrong.) Coincidence that the bank is the target of a comprehensive and coordinated protest from the union? (Dear Bank of America, Call the loan. Today.)

There is much to say about this protest, but the most fascinating part to me is the role played by the police. It seems the DC police followed/escorted/shadowed the protesters into Maryland. They may or may not have notified the Maryland police, who may or may not have been on the scene while the protesters stormed private property and terrorized a teenage boy. Yesterday, Megyn Kelly of FoxNews interviewed law enforcement officials from DC and Maryland and asked many specific, hard hitting questions.

I’m not going to say the law enforcement officials are lying in this interview. They parse their words expertly. When Ms. Kelly backs them into a corner, they shift the focus to irrelevant parts of the story. But, saying they aren’t lying here is a distinction without a difference.

There are a few points to be made.

First, the DC police official says emphatically that their police officers did not cross into Maryland…except when they did. It seems one of their officers, according to their official, made a wrong turn and didn’t fully understand the DC/Maryland border and may have ‘briefly’ been inside Maryland. A wrong turn and a brief excursion through the Maryland suburbs is hardly worth mentioning if that is all that really happened. No one would notice, nor remark on, an errant 30 second diversion through Maryland streets. This story has the classic feel of a diversion; a pat, simple excuse to cover up any other behavior that comes to light. Any future eyewitness accounts of DC police cars at the scene? Yeah, that was that one cop who didn’t know her jurisdiction’s borders and was ‘lost’.

Second, the Maryland police official says, contrary to other statements made by his department, that they were immediately notified by DC police that the protesters were entering their jurisdiction. According to the official, Maryland police met with DC police at the border to get a situation report and then proceeded to the protest. When they arrived, the official claims, the protesters were already dispersing.

Remember that the official says that the site of the protest is “one or two blocks from the DC border.” Whiskey, Tango, Foxtrot…

Fourteen buses start crossing the Maryland border (at which point we’re supposed to believe the Maryland police were immediately notified), they find parking on residential streets, unload their protesters, assemble 500 people on a private lawn, engage in threatening verbal abuse long enough to force a 14 year old boy to lock himself into a bathroom…and the Maryland police get there as they are dispersing? Is their police headquarters in Delaware?

Thankfully, I don’t live in Montgomery County. This is the kind of public safety and police protection for which they pay ridiculously high property taxes? They get a ’situation report’ that 500 protesters are targeting a private citizen’s home and they send 3 police officers? Really? They could only spare 3 officers on a Sunday in Montgomery County?

I hate to say this, and I will no doubt be attacked for it, but stories like this make one feel that the police are not on our side. A few weeks ago, police in Quincy, Illinois deployed a full contingent of riot police to deal with a couple hundred tea party protesters who where singing patriotic songs on public property. In Maryland, 3 police officers police watched as 500 union thugs stormed private property in an act of intimidation and did nothing because, as the police official notes, there weren’t any “no trespassing” signs at the property. (I wonder if he has “no trespassing” signs at his home.)

Sometimes it is the small story that illuminates the overall narrative. Let’s dispense with all the semantics and timelines and legalese. Last week, 500 union thugs descended on a private home and terrorized a teenage boy. They violated someone’s most personal space, their home. And they attacked their most precious gift, their child. The police in two jurisdictions knew about this. They did nothing.

Thirty-seven current Democrat U.S. Senators, along with former Senators Barack Obama and Joseph Biden, believed that Robert Bork, Clarence Thomas, John Roberts, or Samuel Alito were not sufficiently qualified to be on the Supreme Court. Using their own standards, Elena Kagan is also not sufficiently qualified and these 39 Democrats therefore should not support her nomination.

Bork, Thomas, Roberts and Alito, at the time they were nominated for the Supreme Court, had significantly more experience, scholarship, and/or accomplishments than Kagan does now.

Bork served in the U.S. Marine Corps, in private practice for several years, as U.S. Solicitor General, as one of America’s most influential antitrust scholars, and as an U.S. circuit judge. Thomas served as Missouri’s Assistant Attorney General, in-house counsel for a major corporation, a U.S. Senate aide, Chairman of the Equal Employment Opportunity Commission, and a U.S. circuit judge. Roberts served as Special Assistant to the U.S. Attorney General, Associate White House Counsel, Principal Deputy Solicitor General, and head of the appellate practice at Hogan & Hartson (now Hogan Lovells), which was the oldest major law firm headquartered in Washington, D.C. and which now has some 2,500 attorneys worldwide. Roberts also argued dozens of Supreme Court cases and was an U.S. circuit judge prior to his Supreme Court nomination. Alito, among other things, argued a dozen Supreme Court cases as Assistant to the U.S. Solicitor General, was U.S. Attorney for the District of New Jersey, and was an U.S. circuit judge.

Kagan does not have this same level of accomplishment.

A Supreme Court nominee need not have prior judicial experience, but that nominee must have the necessary experience to be a justice. Kagan became Solicitor General about a year ago, and until then her actual litigation experience mainly consisted of doing dredge work like discovery and motion practice. In fact, she joined the Supreme Court bar only shortly before the Senate confirmed her as Solicitor General. Kagan’s inexperience showed when she argued – and subsequently lost – her first Supreme Court case, Citizens United v. Federal Election Commission, the same case which President Obama uses to claim the mantle of standing up for the little guy and to attack the Supreme Court. Kagan herself admits that during her Citizens United argument she did not know how to answer Justice Kennedy’s questions about Thornhill v. Alabama, 310 U.S. 88 (1940) and Coates v. Cincinnati, 402 U.S. 611 (1971) because she did not know them.

Thornhill and Coates are well-known First Amendment cases which Kagan should have learned in law school. Justice Kennedy wrote Citizen United’s majority opinion; perhaps the case would have turned out differently if President Obama had nominated a more qualified Solicitor General candidate.

Kagan and her supporters cite her experience as a professor and dean at Harvard Law School to try and overcome her general lack of qualifications. Knowledgeable liberal academics, however, correctly note that her scholarship is minimal in both quality and quantity. Liberal academics also note that during Kagan’s time as dean approximately 80% of her tenured or tenure-track faculty were white men. Kagan hired five white women, one Asian-American woman, and no blacks, Latinos, or Native Americans. Perhaps Kagan should explain to Justice Sotomayor why she did not hire a wise Latina to be a tenured Harvard Law professor?

Some liberals are afraid that Kagan’s lack of a substantive record means she would move the Court to the right. Ignore this red herring. Kagan grew up in Manhattan’s privileged, liberal Upper West Side and worked for liberal politicians like Liz Holtzman, Mike Dukakis, Bill Clinton, Joe Biden, and now Barack Obama. Kagan may be a stealth nominee, but she is not going to move the Court to the right.

The President of the United States may nominate anyone he likes to serve on the Supreme Court, and the Senate should confirm that nominee based on whether he or she is objectively qualified, respects the Constitution, and will not impose personal political or policy preferences from the bench. A White House spokesman recently declared that President Obama would nominate “someone who has a rigorous legal intellect, respects the limits of the judicial role and has a keen understanding of how the law impacts the daily lives of Americans.” It does not appear that Kagan has these qualities.

Let’s skip the old and useless confirmation arguments over issues like abortion. Instead, let’s examine Kagan, her record, and her qualifications under President Obama’s criteria and the criteria which Democrats used to examine Bork, Thomas, Roberts, and Alito. If President Obama, Vice-President Biden, and the 37 current Democrat U.S. Senators who voted against confirming Bork, Thomas, Roberts or Alito voted true to their beliefs, then they should also vote against confirming Elena Kagan or confess their hypocrisy.

A battle is raging in Texas over our children’s minds. One of the focal points is the “wall of separation” between church and state. It’s a wall based on a false assumption, one that has distorted religious freedom in this country.

The Texas Board of Education must approve textbooks taught in Texan public schools. Its members are the gatekeepers who determine whether a textbook meets curriculum requirements. That board recently met to approve the next generation of books.

But as goes Texas, so goes the nation, because Texan standards are then adopted for textbooks sold all over America. So publishers take drafts to Texas for consultation and approval, making changes as necessary.

One of the changes that conservatives are pushing is for these textbooks to include a discussion of the “wall of separation between church and state.” More specifically, they are pushing for a discussion of what the Founding Fathers thought of this wall.

That is a worthwhile classroom discussion, because the Founding Fathers never created such a wall. That’s why it’s not mentioned in the Constitution.

On January 1, 1802, President Thomas Jefferson sent a letter to the Danbury Baptists of Connecticut, in response to their congratulations upon his winning the presidency. In it, Jefferson referred to a “wall of separation between church and state.”  He wrote this in the context of perceived threats the Baptists felt were coming from the state, not the other way around.

After writing that letter, Jefferson went on attending church, at services held in the House chamber of the U.S. Congress. (On Sundays, the Capitol was a church building.) He also went on to approve legislation for the federal government to undertake the construction of churches in the frontier regions, and helping pay pastors to preach in these churches, to carry the Christian faith to the native peoples there.

Clearly, what Jefferson was describing was not a rigid barrier between faith and public policy, but denominational allegiance by the state.  As the Constitution says, the federal government was not to “establish religion,” that is, to select a particular denomination as a national church.

That’s all the wall is. And Jefferson was among the most secular of the Founding Fathers, who did not believe in miracles, such as the virgin birth or resurrection of Jesus Christ.

The wall of separation nowhere appears in American law until the 1947 case Everson v. Board of Education, when the Supreme Court considered whether a New Jersey law allowing school districts to arrange daily transportation for children to religious schools was constitutional. Although declaring the wall, the Court went on to say that school boards expending public funds getting students to and from religious schools wasn’t unconstitutional—such accommodations were fine.

Later in 1952, the Supreme Court clarified itself in Zorach v. Clauson, saying Americans, “are a religious people whose institutions presuppose a Supreme Being …. When the state encourages religious instruction or cooperates with religious authorities … it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs.”

But in recent decades, this wall has become a hammer used to bludgeon people of faith in a concerted effort to purge the public square of references to faith, silencing those who express faith in a public setting.

With the resurgent interest in the original meaning of the Constitution that began in the 1980s and continues today, using this “wall” as the basis for applying the First Amendment has increasingly been criticized.

One such example came from Chief Justice William Rehnquist. Writing in dissent in Wallace v. Jaffree while still an associate justice, Renhquist wrote, “It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years. Thomas Jefferson was, of course, in France at the time the… Bill of rights [was] passed in Congress and ratified by the states. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.”

America got along just fine without this wall for 158 years, and even afterwards. It’s only been in recent years that it has been twisted into a secularizing influence in our society.

These are historical facts. Children should be taught facts in history class.

Ken Klukowski is special counsel with the Family Research Council and coauthor of the bestselling book The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency.

Click to Play

Rob and Peter fly Steyn-less this week. Nonetheless, sharp analysis of the Kagan nomination from Richard Epstein and John Yoo and a wide ranging conversation with Fred Thompson who discusses his new book, the state of the nation and the world at large, his aspirations for higher office, and his thoughts on the cancellation of a certain TV show. As always, join the conversation on our Facebook page or on Twitter (@ricochet) or write us at podcast@ricochet.com.

Maryland’s intrepid state Delegate Pat McDonough has announced a plan to deal with illegal immigration in Maryland similar to the law recently passed in Arizona. He will introduce this bill in the next legislative session. Maryland’s Montgomery County Gazette issued a predictably critical assessment of the plan, saying McDonough, “never let political reality stand in the way of his crusades,” and declared his proposal dead on arrival before it has even been introduced.

The Gazette response, typical of leftist news media everywhere, displays in microcosm the arrogant myopia that is driving newsrags out of business across this nation. Who in God’s green earth do these people think they are? When and how can any problem be addressed if every controversial proposal is attacked and written off before it is even aired? This is precisely the kind of attitude that gave rise to the Tea Party movement and it is causing a seachange in national politics. The Gazette should take note. Trouble is, liberals are so smug and self-righteous, they can’t see reality even when it is dangled in front of their noses.

Unfortunately, it is the rest of us who pay for their self-serving, destructive polices, and we are frankly fed up. Arizona Governor Jan Brewer deserves credit for braving the denizens of political correctness to enact the Arizona bill. She has set off a chain reaction that has already seen similar legislation proposed in at least nine other states.

Before they start criticizing the Arizona law, which mirrors federal law – not that such irony would ever stop them –  Obama and the Democrats should read the sixteen page bill. Or maybe they should learn why it is the federal government’s failure that prompted passage of the law in the first place. The Montgomery County Gazette got exactly one sentence correct in their diatribe against McDonough when they said, “The federal government basically has abdicated its would-be, should-be role.”

Of course they immediately negated any hope of intellectual redemption by reverting to form and advocating for Congress’s latest try at an amnesty bill.

Oh yes, the Democrats and maybe one or two really stupid Republicans are proposing immigration “reform” like they did in 2007. But as in 2007, it is nothing more than an amnesty bill, and we already know from the 1986 law, that amnesty doesn’t work. It didn’t work then and it won’t now.

But that fact is irrelevant to Democrats, because it is not designed to work. It is designed, like practically everything else that Democrats do, to undermine the rule of law and overwhelm federal, state and local crimefighting, health and welfare budgets according to the Cloward-Piven Strategy of Manufactured Crisis, while securing more reliable voting blocs. This last is an especially high priority for the Obama administration and Congress this year because they are going to need every vote they can get to keep power, and they know it.

The Los Angeles Times, which seems to be coming somewhat to its senses lately (it correctly recognized Senator Barbara Boxer as not having “adequate intellectual firepower” for the job) had the decency to allow Dan Stein of the Federation for American Immigration Reform to make the case for the Arizona law in an OpEd. But that the Gazette, or the Baltimore Sun for that matter, should be so open to first amendment expression. To wit:

• [Arizona] state taxpayers spend more than $2 billion a year on education and healthcare for illegal immigrants and their children
• kidnappings in Phoenix are at an all-time high
• criminal drug, illegal immigrant and other contraband smuggling is epidemic
• Arizonans have endured decades of federal neglect of immigration enforcement
• killing last month of rancher Robert Krentz — police suspect by an illegal immigrant — is only the latest graphic example of widespread lawlessness on the border

The left deliberately raises the strawman argument of “racism” and “racial profiling” to distract from these critical realities. Arizona’s problems are being replicated all over the country as a flood of illegal immigrants, including criminals, terrorists and gangs bring with them violence, diseases once thought to be eradicated, like tuberculosis, and overwhelming burdens to our welfare system, the courts and medical facilities.

A  2006 report from the Dallas Morning News spotlights just one of these issues. The Emergency Medical Treatment and Active Labor Act of 1986 requires hospitals to accept pregnant women in need of emergency help, and imposes a $50,000 fine for violations, so no hospital can turn down illegals. But Parkland Memorial Hospital in Dallas, Texas goes further, offering free prenatal care to pregnant mothers.

Not surprisingly, Parkland gets the lion’s share of indigent and illegal immigrant mothers. Some of its statistics are eye-popping. For example, a 2006 patient survey indicated that 70 percent of mothers who gave birth at Parkland in the first three months of that year were illegal immigrants. In 2004, the hospital spent $70.7 million delivering 15,938 babies.

Yet Parkland is proud of its service to the community and is not troubled by the high cost. As Parland’s CEO said, “We are the safety net hospital for Dallas County, and these folks are residents of our county.” Nice sentiment, but as always, the wise bet is to follow the money. Parkland earned a profit of $7.9 million in obstetrics that year – a hefty 10 percent return! Nice work if you can get it.

So who pays for this cadillac care to indegents and illegals, many of whom are taking advantage of the services to have anchor babies? According to the News article, about $44 million came from state and federal Medicaid funds while Dallas County taxpayers shelled out $31.3 million.

Once again, the taxpayer is on the hook so why should the hospital care?

Like the Arizona law, Del. McDonough’s proposal would give law enforcement the teeth it needs to tackle this problem. And in Maryland, thanks to the Democrats’ sanctuary state policies, the problem is immense. According to a report by the Federation for American Immigration Reform:

• There are currently about 250,000 illegal immigrants in the State of Maryland.
• Illegal immigrants cost Marylanders $1.4 billion per year in education, medical care and incarceration. This represents 70 percent of Maryland’s current $2 billion budget deficit.
• Between 2002 and 2008, the foreign-born population in Maryland grew by 34.6 percent. Meanwhile, the number of students requiring english instruction has grown a whopping 93.7 percent!
• Marylanders spend more than $966 million annually on education for an estimated 80,800 children of illegal aliens.
• nearly $250 million additional is spent on providing special English instruction to an estimated 35,000 children of illegal aliens.
• Almost 10 percent of public school children in Maryland have illegal immigrant parents.
• These costs would be considerably higher if other cost areas such as assistance programs for needy families or welfare benefits for American workers displaced by illegal alien workers or resulting from depressed wages were included in the calculation.

Given the high proportion of mindless living in Maryland, McDonough may well be tilting at windmills, but the worm is turning, and if someone doesn’t act nothing will happen.

At the same time Gallup has released numbers that Americans believe the country’s moral outlook is bleak, another D.C. type has been taken down by sex — or, more accurately, the hypocrisy of having sex when running on moral rectitude. The Washington Examiner’s inimitable Nate Beeler has a humorous cartoon running right now:

Of course, the seemingly endless cavalcade of polticians caught in flagrante delecto isn’t the capital’s only love affair with cross-dressing politics in tones of morality. It’s almost always the moralists who will try to ruin the lives of others by claims of moral failure, right before their own lingerie-covered skeletons come tumbling out of the closet.

This is especially a concern for advocates of limited government, and it forces a tough moment to recognize that we have to defend our values through logic, rather than through the law. Many in Washington love to demand government that is just small enough to fit under the doorway of our bedrooms. Take, for instance, the Department of Justice prosecution persecution in D.C. this summer against a mainstream pornographer. Reason has the story:

So which is the bigger threat, a porn producer you don’t have to buy from or a government that can make unpopular opinions disappear? Interestingly, Gallup figures from this week show that among the many concerns people have about America heading in the wrong moral direction (you kids get off my lawn!), pornography rates right with government policies in making matters worse:

The takeaway for small-government advocates: you can turn off porn, but you can’t turn off a government that doesn’t like Americans being turned on. If we want strong moral values, the answer doesn’t come through politicians and prosecutors — it comes from parents and the community. Let’s drop the attack on free speech and focus on talking more to our kids about the values we hold.

Newt Gingrich is among those who have noted a serious chink in the protective armor the Obama administration and Elena Kagan’s other defenders have tried to throw up around her Supreme Court nomination.  The vulnerability has taken on increased importance insofar as it involves one of the few concrete positions or actions taken by the nominee in a long career almost completely bereft of written or spoken positions that shed light on her judgment and potential judicial philosophy.

It turns out that, at the very moment Ms. Kagan was pushing aggressively to remove military recruiters from the Harvard Law School campus during her tenure as its dean, she was very supportive of having what amounted to Saudi recruiters ensconced there for the purpose of enlisting some of the nation’s finest young lawyers to work for the industry known as Shariah-Compliant Finance (SCF).

The first insight this record suggests is that Ms. Kagan’s true motivation in barring the armed forces was, indeed, an animus towards the military, rather than concern about its supposed mistreatment of homosexuals.  After all, the theo-political-military-legal code that authoritative Islam calls “Shariah” and that is the law of the land in Saudi Arabia is infinitely more homophobic than the Pentagon’s efforts to enforce the U.S. statute that prohibits avowed gays and lesbians from serving in uniform.  The former requires the murder of homosexuals; the latter simply kept them out of the ranks.

Ms. Kagan’s troubling tolerance of Shariah would, of course, have vastly more far-reaching implications should she reach the Supreme Court.  Consider several examples of her direct and indirect role in its insinuation into key U.S. institutions – several of which could be matters upon which the Court may have to rule:

Thanks to millions of dollars gifted by an aggressive promoter of the so-called “civilizational jihad” espoused by the Shariah-adherent Muslim Brotherhood, Prince Alwaleed bin Talal, and other Saudi sources, Harvard University is now a major beachhead of Shariah in America.  In particular, under Dean Kagan, the law school opened an Islamic Finance Project (a less-transparent euphemism for Shariah-Compliant Finance).  The Project’s personnel have been aggressive promoters of SCF, particularly in the aftermath of the economic meltdown in the Fall of 2008, which was portrayed by the industry as proof of the inherent corruption of capitalism and the need for a more virtuous, “ethical” form of finance, namely that “required” by Shariah.

The first clue that something is wrong with Shariah-Compliant Finance is the first word:  SCF is a creation of the Muslim Brotherhood dating to the 1940’s as a means of legitimating and advancing Shariah’s stated objective: this barbaric, totalitarian doctrine’s domination of the Muslim community world-wide and, ultimately, all non-Muslim populations, as well.

What makes a given investment or transaction Shariah-compliant is not, in the final analysis, whether it involves interest, pork, gambling, tobacco, alcohol, pornography or Western defense.  To be sure, those are all considered haram (or “impure”) and are to be eschewed by adherents to Shariah.  No, ultimately, the compliance of a given financial activity with Shariah is a function of whether one or more recognized Shariah authorities say it is halal (“pure”).

This reality accords enormous influence in the SCF industry to such authorities.  Aspiring practitioners of the trade at Harvard Law and elsewhere are, therefore, impressed that they must recruit and rely upon prominent Islamic scholars revered for the latters’ knowledge and practice of Shariah.

Unfortunately, every one of such individuals embraces not only the supremacy of authoritative Islam’s Shariah.  Without exception, they aspire to its ultimate objective: a global theocracy in which a ruler (the “Caliph”) governs in accordance with Shariah.

Thus, the coterie of Shariah authorities now employed by most of the Western world’s financial institutions – including many in the United States – unfailingly champion a seditious program that has at its core the overthrow of the alternative legal systems like the U.S. Constitution and the government it empowers.

One of the most prominent of these authorities is Sheikh Yusef al-Qaradawi who sits on numerous SCF advisory boards and those of Persian Gulf sovereign wealth funds.  He also has his own television program on Al Jazeera, which he uses week after week to inveigh about and call for violence against infidels, the United States, Israel, apostates and, yes, homosexuals. Interestingly, Qaradawi has called zakat, the Muslim charitable donation required by SCF, a form of “financial jihad.”

It is alarming Ms. Kagan has appeared so indifferent to the ominous, if lucrative, use of her campus to legitimate and facilitate the penetration of the academy and, as we shall see, other institutions by Shariah’s insidious, anti-constitutional agenda and its adherents.  In fact, under a neglected part of the U.S. code, such conduct could constitute a felony offense known as “misprision of treason” – inaction (not to say complicity) in the face of seditious activity.

While the prospect that such conduct might be a matter for judicial review, including by the Supreme Court, may seem unlikely at the moment, don’t be so sure.  It is not unreasonable to expect that – in the event of the sort of devastating attack on this country that the intelligence community says is certainly being prepared by Shariah-adherent jihadists (oops, by “violent extremists”) – there will be investigations and perhaps criminal prosecutions of those who were, however tangentially, involved in promoting Shariah in this country.

As it happens, Ms. Kagan’s Islamic Finance Project has also played an important role in the infiltration of Shariah’s promoters within the U.S. government.  On November 6 2008, Harvard Business School professor Samuel L. Hays III conducted a day-long “seminar for the policy community” entitled “Islamic Finance 101. Hayes was a founding member of Harvard’s Islamic Finance Project Advisory Board. Roughly sixty officials were encouraged to embrace the merits of Shariah-Compliant Finance from the standpoint of its ethical and strategic virtues – the latter primarily being an opportunity to recycle petrodollars from OPEC back to Western capital markets.

The host of this Kagan program-enabled “seminar” was Assistant Treasury Secretary Neal Kashkari, who used the occasion to express his own enthusiasm for  Shariah-Compliant Finance.  At the time, Mr. Kashkari had his hand on the spigot of the $700 billion Troubled Asset Relief Program (TARP).  The message was not lost on either his colleagues in government or on the financial sector:  At a time when the viability of major banks and investing institutions depended on Secretary Kashkari’s favor, getting with the SCF program could only be a plus.

Another momentous development during that tempestuous Fall was the federal government’s acquisition of nearly 80% of AIG.  It turns out that the giant insurance conglomerate is also the world’s largest purveyor of Shariah-Compliant financial products.  That’s right:  The U.S. taxpayer now owns the biggest commerial promoter of Shariah on the planet.

The Supreme Court may soon have an opportunity to consider whether such government involvement in promoting a religion violates the Constitution’s establishment clause separating church (or mosque) and state.  A federal lawsuit now pending in the Eastern District of Michigan that asserts the unconstitutionality of this arrangement seems like an open-and-shut case.  Do we really want Elena Kagan casting a vote on the question?

President Obama clearly thought that it would be advantageous to nominate someone to the Supreme Court with a record nearly as thin as was his own prior to winning the presidency.  Fortunately, the foregoing record makes plain that the U.S. Senate has more to go on in evaluating Elena Kagan – at least with respect to her  judgment and fitness to serve on a court that may be the last best hope to preserve the Constitution in the face of Shariah’s civilizational jihad.  The nominee’s hearings afford an opportunity not only to make such an evaluation, but to have a “teachable moment” about the extent to which that insidious, stealthy jihad has, with her help, penetrated America.

Jerry Jackson, notorious member of the New Black Panther Party, who was seen in the video below intimidating and threatening voters in 2008, is running for re-election as a member of the Democratic Executive Committee in Philadelphia.

Here is the “sample ballot” for the 14th Ward, 4th Division. A sample ballot is posted outside of each polling location. You can see Jackson is listed first in a field of three. The top two vote getters will be elected to a four year term as a member of the Democratic Executive Committee. In 2008, Jackson was issued a certificate by the Democratic Party to be inside of the polling place where he was seen intimidating voters.

Jackson and King Samir Shabazz were originally indicted for intimidating voters, but the Department of Justice spiked the case.

No reports of Jackson or Shabazz at the polls yet.

Cross Posted at Election Journal.

Certain conspiracies have been winding their way through the more desperate and hungry parts of the blogosphere; various liberals have alleged that I, Andrew Breitbart, and others “lied” about Patricia Redington’s handling of Kenneth Gladney (who still hasn’t received justice) and Kelly Owens’ cases.

This is the problem when one is driven not by intellectual curiosity, but by a pronounced obsessive bitterness, when bloggers’ content is based upon fruits from scavenge and bias, as opposed to actual investigation which requires more skill, demonstrated by 24thState, in a post which requires full reading. This lack of attention to facts was exhibited last week in a hastily-written piece – too hasty to bother confirming the identity of the intended target – on Crooks and Liars. The cogs in the machine each provided cover , a crack in any flank, according to their rulebook, is invalidation of their own. But as for the matter of Gladney and Redington:

They’re wrong, as usual, but then the Soros and SEIU funded Media Matters has never been interested in the truth.  I speak to this because starting that night, August 6th, I’ve been collecting the information on the Gladney case, from public statements to health records to statements from public officials, and just last week, I delivered much of that information to the prosecutor overseeing the case.

Aside from all of this, I’m glad to see, for the first time, real interest in one of the most under-reported hate crimes in America in the past several years. I’m glad that liberals have mustered up enough interest to ask the questions they couldn’t be bothered to ask last fall when they were too busy trying to cover up the crime against a black man. Perhaps they will also ask why it took Redington so long to talk to witnesses, or about this:

The hospital records were not the complete medical records.  Gladney went to his personal doctor, the one paid by coverage through his wife’s insurance (despite a report and non-correction you might have read in the St Louis Post Dispatch).  Pat Redington’s office had no way of knowing this because prior to them bringing charges, they wouldn’t meet with or speak to Kenneth Gladney, or any of the witnesses in the police report.  Thus prior to the charges being brought, Redington’s office couldn’t check the full medical records.  They didn’t know of the existence of the full medical record.

[...]

These medical records were important, because Redington’s failure to press timely charges was excused by the complexity of the case.  And yet, the information the counselor’s office had was no different the day they pressed charges, then it was on August 12th.  In other words, Redington’s claim of dozens of witnesses and multiple arrests was intended to be an excuse.  The truth is there was no, and I repeat this strongly, NO, investigation from the counselor’s office.

Those on the left stated an aversion to name-calling when they decried when conservatives declared certain of the administration’s politics to be socialist, tossing around words like “liar” and “racist” seem to be excepted from their double-standard, even when those against whom they rail have the advantage of possessing information on the story and not just SEIU rhetoric.

I wrote in December of last year:

St. Louis County Prosecutors watered-down the charges in the Kenneth Gladney case from a misdemeanor to an ordinance violation without so much as even calling St. John’s Hospital, where Gladney received treatment for his injuries, and checking Gladney’s hospital record or speaking with care providers on site.

The truth stands. Continuing:

It has been discovered that no one from Patricia Redington’s office ever accessed Gladney’s medical records for use in determining the charges filed in the case.

The truth stands. Redington received a fragment copy of Gladney’s medical records with the police report. I didn’t realize that it was customary for some to expect that charges in cases be assessed without having all of the information; I also don’t expect some crackpot bloggers, like MMFA, to understand how the difficulty of reporting things during an ongoing criminal investigation. Again:

Thus prior to the charges being brought, Redington’s office couldn’t check the full medical records.  They didn’t know of the existence of the full medical record.

From 24thState, who also has signed documentation from the hospital:

For Media Matters or any other blogger to complain about the ethics of citizen journalists is ridiculous.  We know what we know about the Gladney case because I and a few others wouldn’t let it go.

Here are questions I would like to see liberal bloggers address:

The prosecuting attorney assigned to the case doesn’t get a file until after charges are pressed.  And yet, if there was going to be no further investigation, why then were charges filed based on information that was 15 weeks old?  Redington has never had to answer for that.

It’s in your court, Soros-circus.

Why was SEIU paying the criminal and legal expenses for Elston McCowan and Perry Molens despite stating that they sent no staff to the event? Waiting for your answer, Soros-circus.

Or:

The prosecuting attorney assigned to the case doesn’t get a file until after charges are pressed.  And yet, if there was going to be no further investigation, why then were charges filed based on information that was 15 weeks old?  Redington has never had to answer for that.

I’ll let the peanut gallery take a crack at that. Please keep in mind that I’ve only posted excerpts of 24thState’s article, a blogger who knows more about this case than anyone on the web. Full reading of the original is required.

Those in pursuit of denying justice to Kenneth Gladney and Kelly Owens are welcome to ask questions as those striving to bring these victims justice encourage it, however, those finally asking questions may be most unhappy with the answers, or lack thereof, they receive. Forgive me if I seem suspicious of their sudden concern, providing that these same people deny that an attack took place at all:

(Here’s a shot-by-shot examination of the Gladney attack.)

It’s easier to throw out false, uneducated charges about a case with which your unfamiliar while others actually do the work of reporting the story. This little habit defines so much of liberalism, nay, socialism, does it not? So are liberal bloggers finally admitting that the Gladney beating took place? After the recorded evidence, the charges against several members of SEIU, finally? Incompetence, indeed, Boehlert.

24thState’s post

More on Redington and Gladney

Civil rights.  Inalienable rights.  Human rights.  Animal rights.  Individual rights.  Group rights.  God-given rights.  Sacred rights.  Natural rights.  Positive rights.  Negative rights.  Children’s rights.  Parent’s rights.  Patient’s rights.  Property rights.  Personal rights.  Basics rights.  Fundamental rights.

Just what is a right?  Can some rights be more basics or fundamental than others?  Which is more important, a basic right or a fundamental right?  Do the rights of the many outweigh the rights of the few?  Are rights absolute?  One could assert whole new kinds of rights and then argue about where they fit in among all the other rights.  How about essential rights, or core rights, or perhaps preeminent rights?

Definitions of the nature and origin of rights vary widely – from a gift from God, to one of Thomas Jefferson or James Madison’s tenets, all the way down to “a good thing” – but these disputes can be left to theologians and historians and scatterbrains.  Let constitutional scholars debate the fine points of original intent or understanding (of each delegate?  or the drafter of a particular clause?  or the Convention as a whole?  or Congress?  or the ratifying state conventions?).  What really matters is how rights function within our constitutional system.

A person saying he has the right to XYZ, for instance, is saying that regardless of what other people want, he must have XYZ and society must give it to him.  To admit there is such a right is to accept that the opinion of the majority on his having XYZ is meaningless; it is to accept that your opinion on the issue is meaningless, too.  As anti-democratic limitations on the scope of majority rule, rights are like provisions of the Constitution.  Indeed, they are one and the same, because in a practical sense – the only sense that matters – a right is a government policy that must be so regardless of majority will.

Any constitutional provision can be seen as a right.  For example, Article I, Section 9, Clause 5 – “No Tax or Duty shall be laid on Articles exported from any state.” – can as easily be: “Every person has the right to export Articles from any State without a federal Tax or Duty laid on it.”  The first part of Article II, Section 2 is the equivalent of “The President has the right to be Commander in Chief of the Army and Navy.”  One could say he has the right to veto laws and grant pardons.  A Supreme Court Justice has the right to serve for life, and the Supreme Court has the right to original jurisdiction over cases involving foreign ambassadors.  The residents of every state have the right to representation by two Senators.  People have the right to have their federal laws enacted by a Congress consisting of a Senate and a House of Representatives.  There are many more such variations on the theme, but the point is that the Constitution is nothing but a long list of rights, that is, government policies that must be so regardless of majority will.

In addition to provisions limiting the ability of Congress or the President to change the general structure of the government apart from the amendment process, the Constitution contains many specific limitations on government action that are recognizable as rights.  The narrow definition of treason means that a person has the right not to be convicted of treason for a crime that does not fit the definition.  The privileges and immunities provision is a right, as is the jury trial guarantee.  The Constitution protects creditors by prohibiting states from voiding contracts (as they had done under the Articles of Confederation).  Congress may not pass a bill of attainder (a legislative pronouncement of guilt) or an ex post facto law (making an act illegal after it was committed).  The habeas corpus protection against arbitrary arrest is one of the most important rights protected by the Constitution.

As Alexander Hamilton pointed out in Federalist 84, the Constitution contains these rights and more even without the amendments known as the Bill of Rights.  Can the Bill of Rights protection against unreasonable searches somehow supersede the right to a jury trial spelled out in Article III?  Does freedom of the press outrank freedom of speech?  Is the 3rd Amendment ban on quartering soldiers in private homes more important than the 13th Amendment ban on slavery?  Does the order in which they are listed matter, so that freedom of religion is more important than freedom of speech?  No, to all these questions.  Since the entire Constitution – every rule in the rule book – must be so regardless of majority will, every provision of the original text (where unamended), of the Bill of Rights, and of the later amendments is no more or less important than any other.

Since the entire Constitution – from “We, the people” to “shall have intervened” – is one long right and rights can only be exercised within our constitutional framework, constitutional rights are the only kind with any meaning.  As determined, ultimately, by the Supreme Court, an issue is either a political question – meaning it is to be decided by majority vote – or it is a constitutional right – meaning the correct decision, as determined by the Constitution, must be imposed on the American people whether people want it or not.  In the latter case, figuring out just what it was the Constitutional Convention decided for us on a particular issue may be difficult to determine, but the task does not involve balancing one provision of the document against another.

Some rules in our society’s rule book cannot outweigh other rules; they are all equally valid.  Once understanding that any part of the Constitution, whether expressed as a provision or a right, is a policy that must be so, a person can see the absurdity of trying to balance one right against another.  Gone are tussles between rights and responsibilities, positive rights and negative rights, the rights of the many and the rights of the few, personal rights and property rights, human rights and economic rights, group rights and individual rights, fundamental rights and not-so-fundamental rights.  No constitutional right can be outweighed by some other consideration, because all constitutional rights are absolute.  Either something is mandated by the Constitution or it isn’t.

This essay is adapted from Back to Basics for the Republican Party, a history of the GOP cited by Clarence Thomas in a Supreme Court decision.

US Attorney General Eric Holder knew about Faisal Shahzad’s extremist background and resume. Holder knew about Faisal’s links to the Pakistani Taliban but refused to admit that Islamic radicals were behind the Times Square bomb plot yesterday during his testimony to the House Judiciary Committee.

This is irresponsible and puts American lives at risk. Eric Holder is incapable of understanding the threats facing this nation. Eric Holder must step down.

Times Square car terrorist Faisal Shahzad worked with an accomplice in Pakistan who provided an “independent stream” of evidence that the Pakistani Taliban were behind the botched plot. This information was provided after the accomplice’s arrest in Pakistan last week.

US Attorney General Eric Holder acknowledged that the Times Square bomber was linked to the Taliban. Despite this information, the US Attorney General refused to use the term “radical Islam” when discussing the motives behind the Times Square bomber yesterday during a House Judiciary Committee hearing.

The US Attorney General has information that the Taliban was behind the Times Square attack. Terrorist Faisal Shahzad had substantial connections to the Taliban, reached out to the Taliban, was influenced by Yemeni terror leader Anwar al Awlaki, made at least a dozen return trips to Pakistan since arriving in the United States in 1999, and he bought a one way ticketwith cash to Pakistan. Terrorist Faisal Shahzad was blogging on terror websites about jihad since 2006.

Despite all of this information, Attorney General Eric Holder will not admit to the American public that Faisal Shahzad was a radical Islamist. This is not only irresponsible, it is dangerous.
Eric Holder should resign.

Here’s more information on Faisal Shahzad’s Pakistani connection from The Hindu:

A man believed to be an accomplice of Times Square bombing suspect Faisal Shahzad has been arrested in Pakistan and has provided an “independent stream” of evidence that the Pakistani Taliban were behind the botched plot.

Citing unnamed U.S. officials, The Washington Post reported on Friday that the arrest of the alleged accomplice of Shahzad in Pakistan had not been previously disclosed.

He provided an “independent stream” of evidence that the Pakistani Taliban were behind the attempt and has admitted to helping Pakistani-American Shahzad travel to the tribal belt bordering Afghanistan for bomb training, the report said.

“What they (Shahzad and the suspect arrested in Pakistan) said has been corroborated by other evidence,” a senior law enforcement source was quoted as saying by the paper.

The suspect in Pakistani custody “is believed to have a connection to the TTP (Tehrik-e-Taliban Pakistan),” a U.S. intelligence official said.

U.S. officials cited by the paper declined to identify the suspect in Pakistan, but said American investigators have had direct access to him, and described him as a facilitator for the Pakistani Taliban…

…U.S. Attorney General Eric H Holder has said there was evidence that the Pakistani Taliban was behind the May 1 plotin which Shahzad allegedly tried to blow up a Nissan Pathfinder packed with explosives in the crowded Times Square, one of the world’s most popular tourist attractions.

How many Americans will have to die before Eric Holder understands the nature of our enemy?
Eric Holder must resign.

A third instance of Elena Kagan opposing Americans’ Second Amendment right to own a gun became public Thursday, ensuring gun rights will be a major issue in her Supreme Court confirmation hearings. It also confirms that President Obama’s gun-control agenda is to create a Supreme Court that will “reinterpret” the Second Amendment until that amendment means nothing at all.

This year, no case on the Supreme Court docket is more important than McDonald v. Chicago, where the Court is deciding whether the Second Amendment right to keep and bear arms is only a right you have against the federal government, or instead if the Second Amendment (like most of the Bill of Rights) also secures a right you can assert against state and local governments. At issue is whether Chicago’s law banning guns—even in your own home—is constitutional.

When the Supreme Court considered its last Second Amendment case in 2008, District of Columbia v. Heller, then-Solicitor General Paul Clement filed a brief in the case, and then requested and received time to argue the federal government’s position on the meaning of the Second Amendment.

When the McDonald case was argued before the Court on March 2, current Solicitor General Kagan argued… Nothing. Not only did she not ask for time during oral argument, she didn’t even file a brief (which the solicitor general routinely does in important constitutional cases—and the McDonald case is tremendously important).

If someone asserts that the solicitor general shouldn’t file a brief because it’s a state issue as to whether the Second Amendment is “incorporated” to the states through the Fourteenth Amendment (which is the issue in McDonald) the record speaks to the contrary. The last time the Supreme Court “incorporated” a right from the Bill of Rights to the states, in the 1969 case Benton v. Maryland, the solicitor general filed a brief, and then (just like Heller in 2008) was given time in oral argument time to express the government’s views in front of the Court.

Why wouldn’t Kagan file a brief expressing the view of over 75% of Americans that the Second Amendment is an individual right, one that every American citizen has against both the the federal government and state/local government?

Aside from her shocking decision not to file a brief in McDonald, we’ve learned that Elena Kagan was part of the Clinton White House’s gun-control efforts, where a Clinton staffer said, “We are taking the law and bending it as far as we can to capture a whole new class of guns.”

Then on Thursday it became public that when the Supreme Court was asked in 1987 to decide if the D.C. gun ban was unconstitutional (the same law that the Court eventually struck down in Heller)  when Kagan was clerking for Justice Thurgood Marshall, Kagan’s analysis to Marshall was that she was “not sympathetic” toward the argument that the Second Amendment doesn’t allow D.C. to completely ban all guns.

Three anti-gun decisions. And her nomination isn’t even a week old.

The bottom line is that Barack Obama supports the Chicago gun ban, a position he publicly repeated as recently as June 26, 2008 (the day the Heller decision was released). President Obama believes that there’s nothing unconstitutional about your city—or even your whole state—completely banning you from having any firearms for hunting or self-defense, even in your own home.

As we discuss in our new bestselling book, The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency, President Obama’s gun-control agenda is to create a Supreme Court that will repeatedly rule that whatever gun-control laws come before it are okay. No matter how severe the anti-gun measure is, the Court will say, “No constitutional problems with this law.”

President Obama—the most anti-gun president is American history—has nominated for our highest court a close personal friend of his. And now we see that Obama has every reason to believe that his close personal friend shares his radical view on the Second Amendment, one that will work against the constitutional rights of 90 million American gun owners.

All this, as the National Rifle Association goes to Charlotte, North Carolina this weekend for the NRA Annual Meeting. You don’t have to wonder what we’ll be talking about in Charlotte.

Elena Kagan’s confirmation hearings this summer could get very interesting. America’s gun owners have a way of making their voices heard.

Late this afternoon Lt. Colonel Oliver North confirmed that Taliban leader and Osama bin Laden ally, Mullah Mohammed Omar has been captured.  The exclusive news of Omar’s capture was broken by Big Government Monday evening.

According to Colonel North, Omar was picked up in Karachi on March 27th by the Pakistani Inter-Services Intelligence Directorate (ISI) who placed him under house arrest in what they call “community care.”

Per North’s sources, “[Omar] has since been transferred to a secret ISI lock-up under the Pakistani euphemism: “institutional care.”

North goes on to state, “According to several reports, all of this information was confirmed to U.S. officials by a senior Pakistani military officer ‘several weeks ago.’”  A fact also broken in Monday’s Big Government exclusive.

Last weekend, Secretary of State Hillary Clinton created a “diplomatic firestorm” when she indicted Pakistani cooperation with the U.S. in the hunt for Al Qaeda and Taliban operatives.  Said Clinton, “I believe somewhere in this government are people who know where Osama bin Laden and Al Qaeda is (sic), where Mullah Omar and the leadership of the Afghan Taliban is (sic)…”

North hopes the Secretary was “dissembling,” because intelligence sources here in the U.S. and Afghanistan have informed him that Pakistani officials “know exactly where Mullah Omar is: in the hands of the ISI.”  Driving the point home, North added, “This should not be news to the U.S. Secretary of State.”

So what’s at stake and why did the Pakistanis grab Omar?  As I reported earlier today, and as Colonel North confirms, everything is revolving around the so-called peace jirga between the Karzai government and the Taliban. “The ISI intends to be in the driver’s seat when the ‘Peace Talks’ get underway in Afghanistan later this month,” says North.  “And the ISI officers calling the shots know Mullah Omar is the best bargaining chip they have.”

Of additional note in North’s reporting are the predictions that an immediate, Vietnam-style, “cease fire” may be a pre-requisite for talks, as might a demand that Omar be granted safe haven in Saudi Arabia.  The latter likely being an untenable requirement for the United States.

One thing, though, is certain.  As North puts it, there is a “near-total lack of intelligence on what’s really happening on the ground on either side of the Af-Pak border.”  What little we are getting doesn’t seem to be getting to the appropriate people.

In light of this confirmation of Mullah Omar’s apprehension, a whole new set of questions now arise and have already started being asked around Washington.  In particular, who knew what and when did they know it?

The Omar capture is only the tip of the iceberg.  Expect to hear a lot more in the days and weeks to come.

Elena Kagan may be hostile to the view that the 2^ndAmendment to the Constitution protects American’s individual right to keep and bear arms.  Bloomberg reports today, “Kagan Was ‘Not Sympathetic’ as Law Clerk to Gun-Rights Argument.”  With the evidence presented by the Los Angeles Times that Kagan was very active in the gun control agenda during her time as counsel for the President Bill Clinton Administration, a thorough examination of Kagan’s views on the 2^nd Amendment is merited.

Bloomberg Reports that “Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was ‘not sympathetic’ toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.”  In the wake of the District of Columbia v. Heller decision holding that the 2^nd Amendment is an individual right, it is incumbent upon Senators to explore the views of Solicitor General Elena Kagan on American’s civil right to own a firearm. More from Bloomberg:

Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man’s appeal. The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.”

This should open up an inquiry about Elena Kagan’s views on gun rights.

Cross posted at Heritage Foundation’s Foundry Blog.

The apparent absence of grownups in the Administration and in Congress (not just this Administration and not just this Congress) has produced a truly sad, and indeed, scandalous spectacle.  History will not treat our current ruling class kindly with respect to immigration policy, nor should it.  If our own federal government doesn’t show sufficient respect for our nation’s borders, why should we expect anyone else to?

Clearly, the federal government has the sole authority and responsibility under the constitution to protect the nation’s borders.  But if the government fails, utterly fails, to discharge that responsibility or, worse, fails to even show an inclination to secure its borders, it is entirely reasonable that border states will attempt to do what the federal government has refused to do.  Sneaking into the United States in violation of all of our immigration procedures is a serious violation of our laws. Ignoring the law, or doing little or nothing to enforce the law, does not make illegal immigration any less illegal.

Arizona, the state with the most porous border, and with the highest ratio of illegal immigrants to population has enacted legislation (SB 1070) in an attempt to discourage the flow of illegals into its jurisdiction and to have sent home those illegals whose actions have raised reasonable suspicion of other violations of the law.   It is suspected violations of the law other than illegal entry that authorizes law-enforcement officers to inquire into one’s resident status, not the color of one’s skin, not one’s accent or one’s social customs.

SB 1070, contrary to what so many media talking heads and opportunistic politicians have suggested, is not a reincarnation of Nazi Germany’s Nuremberg Laws, and Governor Jan Brewer, who signed the Arizona bill into law is not a reincarnation of Adolph Hitler.   Those who are whipping masses of well-intentioned Americans into a frenzy by equating Governor Brewer or SB 1070 with Nazism are far more reminiscent of Joseph Goebbels and his Nazi “big lie” propaganda campaign than are those Arizona lawmakers who are simply trying to do something about the unimpeded tide of illegal immigration into their state.

We would favor a sensible path to legal status including eventual citizenship for those undocumented aliens who want only to work, contribute to America’s growth and who respect our laws and our language, IF the federal government first secured the nation’s borders.  The reality is that a huge number of those who have come here without proper authorization, today, have children who are, in every respect, 100% American citizens. Another sad reality is that many, perhaps most, of those who so vehemently oppose what Arizona has legislated into law, really oppose any Act or policy, or the enforcement of any law, that deals with illegal immigration as a violation of the law.

SB 1070 goes to great length to avoid racial profiling, the specter of which has engendered nearly all of the well-orchestrated hysteria against the law, and to protect employers who have made a reasonable effort to comply with the law when hiring immigrant workers.  The Arizona law merely says that the federal law is also the law of Arizona, one of the states with international borders, the integrity of which the federal law is, presumably, there to protect.  Given that the bordering country is Mexico and that virtually all of the immigrants who illegally enter Arizona from Mexico are, of course, Mexicans, the law is subject to concern that it might result in some racial profiling. Well it might, but the Arizona law makes it quite clear that racial profiling will not be tolerated and those who drafted the law have, in fact, gone to great length to proscribe racial profiling.

At this point in our essay perhaps a short digression into the history of immigration law might be useful.  The United States Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization.  The Immigration and Naturalization Act enacted in 1952 sets forth the legal requirements to become a U.S. citizen.

Prior to that time numerous statutes governed immigration but they were not codified in any coherent way.  It is far beyond either the scope or purpose of this essay to trace the changes Congress has made in immigration policy.  What is clear is that changes to the law often reflect fears and prejudices rather than the hopes of our citizens.  Often statutory changes have stemmed from the fear of workers of loss of job security from cheap foreign labor.

Immigration to America has not been an easy ticket since early in the twentieth century.  Quotas, since the end of World War One, have been established originally based on nationality and later giving preference to certain skill sets or close relatives of U.S. citizens.  Under current law, only foreign nationals who are admitted as legal immigrants or who are recognized as candidates for political asylum are eligible to take steps toward citizenship.

In the 19^th century, immigration law and policy clearly favored white Europeans.  After the Civil War, criteria excluding blacks were successfully challenged.  However, in the late 19^th and early 20^th centuries, laws were enacted to exclude Chinese immigrants and national policy clearly made immigration of other Asian nationalities quite restrictive and almost impossible.  The outright racial prejudice on which various federal law and interpretive court decisions were based is almost unbelievable to any person who has grown up during and after the Civil Rights movement.

Only in 1965 was the immigration law amended to remove “natural origins” as the basis to qualify for immigration, although country quotas remain.  Political and economic considerations still mattered; however, as the Congress tried to adjust the laws to take into account the needs of various industries and the protection of jobs of American workers.

So what is different now, that has brought immigration law and policy front and center on the nation’s political agenda and made it such an explosive issue?  Without defending past exclusionary policies and quotas, it is clear that immigration laws were much more easily enforced in earlier times largely because the vast majority of immigrants had to cross an ocean to get here.  From the moment they disembarked they were part of a legally sanctioned process and we could, theoretically, keep track of them as they progressed through that process.  But in the past 20 years or so the bulk of the population influx into America has been Latino, mostly Mexican, and entry is possible by walking across the border.  True enough, we make efforts at policing the border but those efforts have been largely ineffective given that we share a 2100-mile border with Mexico.

Let us stipulate that Latino immigrants like others of different ethnic origins before them have been, and should be, absorbed into the fabric of our society.  But unless we want to abandon any immigration control, close our eyes to the established law, and simply open our doors to all comers the law must be respected and enforced.

It is estimated that somewhere between 10.8 and 12 million illegal immigrants are currently living in the United States.  Any new immigration bill must deal with that issue.  It is totally unrealistic to believe that we could, or should, identify, roundup and deport even a substantial number of these people.  To do so would be draconian and contrary to our collective sense of American values and proper due process, even allowing for the illegal status.  On the other hand, to ignore the issue, or simply grant amnesty to those who violated the law would be to reward illegality and encourage more of it.  Given the strain on the public resources of our states and municipalities, any addition to any public assistance program caused by people who are here illegally, who may not pay taxes and who may be competing for jobs against American citizens when unemployment is close to ten percent, is a combustible issue.

However, our Congress has punted on the subject of immigration reform for years and the public is quite sick of it.  Leaders are supposed to lead.  As we said in a prior essay, the inability of Congress to solve problems is what frustrates and motivates millions of Americans including those who comprise most of the Tea Party movement.

The two political parties seem far more interested in seeking political gain in the next election cycle than they are in seeking sensible and practical solutions to real problems that antagonize the American public. The political left paints as “racist” or “fascist” anyone who expresses a desire to crack down on illegal immigration from Mexico.  Conservatives who want only to focus on border control and simply deport those who are already here are wearing blinders.

As Peggy Noonan stated in her op-ed piece in the May 1st edition of the Wall Street Journal “The American president has the power to control America’s borders if he wants to, but George W. Bush and Barack Obama did not (and do not) want to, and for the same reason, and we all know what it is.  The fastest growing demographic in America is the Hispanic vote, and if either party cracks down on illegal immigration, it risks losing that vote for generations.  But while the Democrats worry about the prospects of the Democrats and the Republicans about the well-being of the Republicans, who worries about America?”  “No one” she answered.

It is by no means clear whether the Arizona statute will pass constitutional muster.  However, sooner or later (probably sooner) the courts will weigh in on this issue.  What is clear, however, is that the people of Arizona acted because Congress abdicated its responsibility.  Approximately 500,000 illegal immigrants live in Arizona, a state with a population of slightly over 5 million people.  Whatever one’s position on illegal immigrants, that is a huge number of people for a single state to absorb.  The state’s ability to educate the children of illegal immigrants or to provide health or emergency services is already strained.  And the resentment felt by the citizens of Arizona who, rightly or wrongly, believe their jobs are jeopardized or that their tax money is supporting illegals, is palpable.

With political will and interparty cooperation the problem could be solved.  Start with this premise:  Every sovereign nation, in the interest of its own security, is entitled to live within secure and defined borders.  Thus, before the rest of the immigration problem is addressed, the border must be made secure.  We need to know that the problem will not grow before we implement any policy that addresses the undocumented millions who are already here.  Moreover, this is an imperative not just because of illegal immigrants, but because of the growing problem of the violent Mexican drug cartels who are now expanding their reach into the U.S., particularly Arizona and California.  These cartels are so powerful that they almost amount to an insurgency (think Pakistan and Afghanistan).  The only way to secure the border is with a fence or wall, monitored with sophisticated surveillance equipment that covers the entire 2100-mile border.  It certainly can be done and should be done in a bi-partisan manner.

If our legislators could agree on that, an immigration reform bill could be enacted. As an example, we could develop a policy, perhaps a policy that would allow some of the illegal immigrants who are already here and who are able, to work their way toward legal status through some sort of service program ‑‑ either in the military or through a domestic service corporation. Other programs or monetary penalties could be established for those who could not perform military or other civilian service. While this would recognize that there is no way we can effectively deport 12 million people from the country, it would, nonetheless, require them to pay some price to move toward citizenship so that illegal behavior was not simply rewarded. With a secure border we would not have to fear that a program allowing undocumented immigrants to take well-defined steps toward citizenship would simply invite more illegals.

Bad economic times and an electorate very disgruntled with the ability of the people supposedly in control to actually take control is a dangerous mix.  Add to this circumstance a burgeoning illegal immigrant problem and it could become a source of very significant social unrest.  It isn’t too late for sensible politicians in Washington to craft a sensible solution, but given the wise words etched on the edifice of the National Archives, “Past is Prologue,” count us among the pessimists.

Some major aspects of Arizona’s immigration law are Keynesian and left wing, and criticisms of these aspects are quite consistent with conservative values. I focus here on three of those values: one, the sovereignty of freedom; two, the sovereignty of the individual over the collective; three, the opposition to big government power.

S. B. 1070, in some key ways, falls short of these three principles.

One, the sovereignty of freedom: Often we are asked to choose between freedom and safety–and many understandably choose safety. But in S. B. 1070 precious little safety is provided in reality. If in enforcing this law there must be “lawful contact” with possible illegal immigrants and “the most likely context where this law would come into play is a traffic stop,” very few of Arizona’s 500,000 illegal immigrants will be caught. But freedoms of many innocent people will be intruded upon. Of this, there is no doubt.

Two, the sovereignty of the individual over the collective: John Stuart Mill wisely observed the “tyranny of the prevailing opinion” throughout times in history. When, for example, the American majority approved the incarceration of Japanese-Americans during World War II, those minority individuals who opposed such incarceration were called unpatriotic Americans by the majority. Similarly, those in the minority who denounced the majority’s defense of the Salem witch trials were called blasphemous. And those who criticize S. B. 1070 are dismissed by many in overly harsh tones.

Three, the opposition to big government power: S. B. 1070 doesn’t codify abuse, but it does codify the power for government abuse–and that abuse will surely come. Ten years ago in Texas, as a relevant example, a federal judge cited a catalogue of “reasonable suspicions” that police offered in stopping and searching vehicles in South Texas,

–”The vehicle was suspiciously dirty and muddy, or the vehicle was suspiciously squeaky clean.”

–”The vehicle was suspiciously traveling fast or was traveling suspiciously slow (or even was traveling suspiciously at precisely the speed limit).”

–”The (old car, new car, big car, station wagon, camper, oilfield service truck, SUV, van) is the vehicle typically used for smuggling aliens or drugs.”

–”The driver would not make eye contact with the agent, or made eye contact too readily.”

–”The time of day (early morning, mid-morning, later afternoon, early evening, late evening, middle of the night) is when ‘they’ tend to smuggle contraband or aliens.”

–”The passengers were slumped suspiciously in their seats, presumably to avoid detection, or the passengers were sitting suspiciously ramrod erect.”

–”The vehicle was riding suspiciously low (overloaded) or suspiciously high (equipped with heavy-duty shocks and springs).”

Already in Arizona calls are coming into the police station such as: “Officer, there’s a bunch of Mexicans gathered together on the corner. Get over here quick to check their ID papers to see if they are illegal immigrants. They look suspicious.”

When I worked for President Reagan at the United States Information Agency, I watched East German guards, then under the Soviet Bloc, demand identification papers from ordinary East Berlin citizens who innocently approached the American Embassy. Never, ever did I envision that American government officials would demand ID papers from a group standing in a parking lot, ostensibly guilty of nothing but being together and looking suspiciously “like Mexicans.”

S. B. 1070 will catch few illegal immigrants, it will challenge the sovereignty of freedom, it will place the sovereignty of the collective over that of the individual, and it will codify the power of big government abuse. Conservatives–hell, everyone–should rail against this well-intended but, in reality, bad law.

I have been perusing the paper trail for SCOTUS nominee Elena Kagan, but most of it is mere puffery written for the purposes of a future nomination.  I will continue to examine her record and analyze her work (because politicians and the press clearly have more important things to do), but I did come across one gem early.

“Richard Posner is the most important legal thinker of our time, and for generations to come legal scholars will dissect and analyze, will praise and criticize, his distinctive legal vision,” gushed Elena Kagan in 2007.  “Rifle through the pages of whatever casebook you have at hand (nearly any subject, common law or statutory, will do) and you will find a grossly disproportionate number of Posner opinions.  Perhaps consciously, perhaps not, Judge Posner writes for the casebooks: for two and a half decades, he has produced simply remarkable teaching materials.  Love them, hate them, agree or disagree with them, Judge Posner’s opinions make people think -about what the law is doing, about what the law should be doing, about why it all matters.  Law professors – actually, anyone who cares about our legal system – should esteem these opinions for this quality.”

Any person with any legal background with an ounce of credibility knows 7th Circuit Appellate Judge Richard Posner to be a brilliant jurist.  So why are we not elevating “the most important legal thinker of our time,” in Kagan’s own words, to the most important institution in shaping the law of our land?

Probably because our President has no clue the man exists, despite the fact that both attended Harvard Law School, served as President of the Harvard Law Review (though only one of them published) and accepted teaching positions at the University of Chicago Law School (though only one of them actually was a professor).  Shoot, when I put it that way, it sounds like Judge Posner is more qualified to be President (and he was in no way corrupted by Chicago politics).

Judge Posner is certainly as qualified as Elena Kagan to be a Supreme Court Justice.  Both clerked for SCOTUS, served in the solicitor general’s office, and taught law at the University of Chicago.  But only one has served as a judge for the last 29 years; only one has offered a paper trail of judicial brilliance.

Age should not be a factor, either.  Judge Posner is younger than a majority of the court (Stevens, Ginsburg, Scalia, Kennedy and Breyer are all older).  His experience as a judge prior to elevation to SCOTUS almost equals that of the most experienced justices prior to elevation (Sotomayor and Alito at 17 and 16 years, respectively).  And, much like retiring Justice Stevens, he writes his own opinions.

Now, here is the kicker for all of the trolls on the internets and any liberal that thinks progressives have your interests in mind: he has an issue with the criminalization of marijuana.  Your precious “liberal” wing of SCOTUS will always uphold federal law justified under the commerce clause.  And if you think the Left in Congress will ever repeal the drug laws, you live in la-la-land.  But we already knew that.

Sadly, Judge Posner, one of the most deserving candidates for SCOTUS, will probably never get a nomination from either political party.  President Bush tried to convince conservatives that his personal relationship with Harriet Miers was enough to guarantee that she’d have the right opinions.  President Obama apparently feels the same way.  Forgive me for using salty language, but I’d appreciate it if those people lucky enough to serve this nation as its President didn’t piss down my back and tell me it’s raining.

Kagan does not belong on the court, just as Miers did not belong on the court.  At some point – we are going to have to start selecting judges based on their experience, and not on how long they have known the president.

I have been perusing the paper trail for SCOTUS nominee Elena Kagan, but most of it is mere puffery written for the purposes of a future nomination.  I will continue to examine her record and analyze her work (because politicians and the press clearly have more important things to do), but I did come across one gem early.

“Richard Posner is the most important legal thinker of our time, and for generations to come legal scholars will dissect and analyze, will praise and criticize, his distinctive legal vision,” gushed Elena Kagan in 2007.  “Rifle through the pages of whatever casebook you have at hand (nearly any subject, common law or statutory, will do) and you will find a grossly disproportionate number of Posner opinions.  Perhaps consciously, perhaps not, Judge Posner writes for the casebooks: for two and a half decades, he has produced simply remarkable teaching materials.  Love them, hate them, agree or disagree with them, Judge Posner’s opinions make people think -about what the law is doing, about what the law should be doing, about why it all matters.  Law professors – actually, anyone who cares about our legal system – should esteem these opinions for this quality.”

Any person with any legal background with an ounce of credibility knows 7th Circuit Appellate Judge Richard Posner to be a brilliant jurist.  So why are we not elevating “the most important legal thinker of our time,” in Kagan’s own words, to the most important institution in shaping the law of our land?

Probably because our President has no clue the man exists, despite the fact that both attended Harvard Law School, served as President of the Harvard Law Review (though only one of them published) and accepted teaching positions at the University of Chicago Law School (though only one of them actually was a professor).  Shoot, when I put it that way, it sounds like Judge Posner is more qualified to be President (and he was in no way corrupted by Chicago politics).

Judge Posner is certainly as qualified as Elena Kagan to be a Supreme Court Justice.  Both clerked for SCOTUS, served in the solicitor general’s office, and taught law at the University of Chicago.  But only one has served as a judge for the last 29 years; only one has offered a paper trail of judicial brilliance.

Age should not be a factor, either.  Judge Posner is younger than a majority of the court (Stevens, Ginsburg, Scalia, Kennedy and Breyer are all older).  His experience as a judge prior to elevation to SCOTUS almost equals that of the most experienced justices prior to elevation (Sotomayor and Alito at 17 and 16 years, respectively).  And, much like retiring Justice Stevens, he writes his own opinions.

Now, here is the kicker for all of the trolls on the internets and any liberal that thinks progressives have your interests in mind: he has an issue with the criminalization of marijuana.  Your precious “liberal” wing of SCOTUS will always uphold federal law justified under the commerce clause.  And if you think the Left in Congress will ever repeal the drug laws, you live in la-la-land.  But we already knew that.

Sadly, Judge Posner, one of the most deserving candidates for SCOTUS, will probably never get a nomination from either political party.  President Bush tried to convince conservatives that his personal relationship with Harriet Miers was enough to guarantee that she’d have the right opinions.  President Obama apparently feels the same way.  Forgive me for using salty language, but I’d appreciate it if those people lucky enough to serve this nation as its President didn’t piss down my back and tell me it’s raining.

Kagan does not belong on the court, just as Miers did not belong on the court.  At some point – we are going to have to start selecting judges based on their experience, and not on how long they have known the president.

The reported Pakistani capture of Taliban founder and overall leader Mullah Omar is potentially a game changing event in the Afghanistan war, with profound implications for the stabilization of Pakistan.

If the report is correct, and if Omar is persuaded to talk (which is not at all assured) the information he has could reduce the Taliban networks in Afghanistan and Pakistan to a level at which – for a time – they were no longer an existential threat to both governments.  And, equally important, he could expose the details of the Iranian support of the Taliban, naming people in Iran, Pakistan and Afghanistan who give and receive arms, funding and training.

But let’s not celebrate too quickly.

First and foremost, we need to get the Pakistanis to delay giving him into US custody.  That is contrary to our normal instincts, but this man – taken alive and brought to any US detention facility other than Guantanamo Bay — would be Mirandized and pushed into the civilian criminal justice system where he, and his ilk, manifestly don’t belong. We would be forfeiting months of probable success in interrogating him.

The other reason to keep Omar in Pakistani custody is the Iran question.  The Obama administration still hasn’t formed the so-called “high-value detainee interrogation group” promised as the alternative to the now-banned “enhanced interrogation techniques” which proved so valuable in the Bush era.

If Omar can be persuaded to give up information on Iran, it should be either to CIA or US military intelligence personnel or to the Pakistanis.  US civilian interrogators would be more susceptible to Administration pressure to ignore information about Iran which might put them in the position of having to do something serious in response to the information.  Obama wants no inconvenient truths interrupting his “open-hand” strategy to Iran.

CIA and military US interrogators – perhaps working with the Pakistanis in a Pakistani jail — can better question Omar on matters such as the Iranian Revolutionary Guard Corps’ involvement with the Taliban, what other sources of funding and support come from other Islamic countries, and what involvement do Russia and China have? (We know from the Pentagon report on Afghanistan released a week ago that the Taliban receive funding from many Islamic countries).

And then there is the question of Usama bin Laden and his deputy, Ayman al-Zawahiri. Omar is reported to be close to them both, and if anyone could lead us to them, it is probably Mullah Omar.

Omar is, at the very least, a co-conspirator in the 9-11 attacks.  If we have him – or the Pakistanis do – he must not be allowed to escape.  He should face trial in a military commission at Gitmo as soon as the intel folks have bled him dry (figuratively speaking, more or less.)

If Omar has been captured, there is a time window in which he must be questioned and the information he gives up acted upon.  If the Pakistanis – or we — have Omar then the Taliban and al-Qaeda know we do.  And they will change as much of the way they operate, their funds flow, the location of their people and supply trails as they can.

That would disrupt, but not destroy, the Taliban networks. If we can get Omar’s information and turn it into actionable targeting data for everything from B-52s to special operations cadres, we can do more than disrupt: we can, conceivably, put the Taliban on its back for a long time.  If we aren’t willing or able to seize the opportunity, Omar will be just another wasted chance to make huge progress in Afghanistan.

But not permanently.  Remember, please, that this is as much an ideological war as a kinetic one.  And remember that the Taliban are Iran’s surrogate, not the principal enemy. Even if we have Omar and everything works as we’d like it to, the Taliban will be back, again and again, until Iran is forced to stop sponsoring terrorism against us.  Don’t hold your breath.

“When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.” Elena Kagan, 1995.

Elena Kagan was correct, judicial nominees, their record, and their judicial philosophy should be thoroughly scrutinized before the Senate awards them a lifetime appointment to the bench.  Despite her public statements that nominees should be rigorously vetted, she has been uniquely circumspect about her own views and judicial philosophy.  What little we know of Ms. Kagan’s positions raises serious questions regarding her fitness for service on the Supreme Court.

Ms. Kagan, an accomplished academic, has revealed little of her own judicial philosophy.  Given the important and complex issues that routinely come before the Court this may not be overlooked.  She has served as Dean of the Harvard Law School and has served both Presidents Clinton and Obama.  While a distinguished academic, her experience is not necessarily relevant to the serious position for which she has been nominated.

Whether in her academic or political career Ms. Kagan has closely guarded her personal ideology.  What little she has revealed should not sit well with the American public.

Ms. Kagan clerked for Justice Thurgood Marshall.  In her academic writings she has embraced the statements of Justice Marshall who argued “the Constitution, as originally drafted and conceived, was ‘defective.’”

While Dean of Harvard Law School Kagan banned military recruiters from using the law school’s career services office.  She objected to the military’s prohibition on openly gay and lesbian individuals serving in the military.  Kagan revealed how strongly she held this belief – she stated that the military recruitment policy caused her “deep distress” and that she believed it to be “a profound wrong — a moral injustice of the first order. And it is a wrong that tears at the fabric of our own community.”

As Solicitor General, Elena Kagan defended the Government’s position in Citizens United v. FEC.  She stood before the Court and explained that an overbroad statute could permit the government to regulate both books and pamphlets – but not to worry because “there has never been an enforcement action for books.”

In introducing Elena Kagan as his nominee to the Supreme Court, President Obama revealed that Kagan’s argument in Citizens United revealed more than just her advocacy on behalf of the United States government, but rather revealed her personal philosophy regarding the First Amendment:

“And during her time in this office, she has repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations.

“Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections.

“Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the court.

“I think that says a great deal not just about Elena’s tenacity but about her commitment to serving the American people.

“I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.

From these few public positions we see the need to thoroughly engage Ms. Kagan in a discussion on her beliefs regarding these important issues. Ms. Kagan’s deeply rooted liberal ideology raised a serious question regarding her ability to function as Solicitor General.  As Senator Arlen Specter noted:

“During the course of the hearing, we discussed extensively some of her very deeply held positions. The question was raised by me, given those positions, would she be able to take a contrary position on some statute that she is obligated to uphold in arguments before the Supreme Court. She said she would. But the question remains, when you feel so strongly — and the record will show what she had to say — whether you can really make a forceful argument as an advocate. Theoretically, you can. Lawyers are not supposed to necessarily believe in their positions; they are supposed to advocate. The clash and clamor of opposing views in our adversarial system is supposed to produce truth. Lawyers advocate more so than state their own positions. But there is a degree of concern when the views are as strongly held as Dean Kagan’s have been.

These questions are more important today.  Ms. Kagan’s record, writings, ideology, and judicial philosophy must be taken into account by the Senate in deciding whether to confirm her.  Members of the Senate should heed Ms. Kagan’s own advice and demand a “meaningful discussion of legal issues.”  Now that Kagan herself comes before the confirmation process, perhaps we’ll find that like she argued in Citizens United, “the government’s answer has changed.”

Big Brother says elderly visitors to federally funded meals at a Georgia senior citizen’s center aren’t allowed to pray to that Christian God of theirs. Obama’s Big Brother government contends that since it has paid for their meals the government has the right to slam its iron boot heel down on the necks of those seasoned citizens that dare to engage in such an apostasy toward the state.

Seem absurd? Well it is but that is what happens when the feds roll into town and begin to hand out money. They feel the right to dictate what everyone is allowed or not allowed to do and in the case of Port Wentworth’s Ed Young Senior Citizens Center near Savannah that is to tell these old folks that they are not allowed to pray before a meal.

There are federal “guidelines” to observe, after all and the federal government’s rules say none of that ridiculous Christian stuff will go on if the feds supply even a penny of funding. Old folks that want to pray are banned from doing so and if they don’t like it, why they can go hungry because the new Uncle Sam is a crusader against religion.

Well, at least one religion, anyway.

You see, while Obama’s federal government is ever ready to get tough with Georgia’s elderly and to put a stop to all that praying nonsense, it is also the same government that at federal expense is installing ritual footbaths in airports and universities to mollify Muslims. Not only that but the same federal government sees no reason to stop bombers from easily boarding planes so that they can make an escape to a foreign nation after a failed attempt to kill untold hundreds of Americans. But damn the torpedoes and full speed ahead to prevent those dangerous old folks in the middle of Georgia from daring to pray to that subversive Christian God!

The nerve of those elderly Americans daring to observe their Christian cultural heritage, a heritage that helped build this country. It’s an outrage, don’t you think? So, it’s freedom from religion as far as Obama’s government is concerned. I mean these old folks are probably as dangerous to the state as can be! Thank Gaia that Obama is quashing their subversive activities.

Praise be it to the state, thanks be to The One, and pass the potatoes. The Obammessiah shall provide all our wants. But, remind me… has he walked on water yet?

In 2005, Supreme Court Justice Sandra Day O’Connor announced her retirement. 
President Bush (with the oh-so-”helpful” suggestion from Democrat Harry 
Reid) then named White House Counsel Harriet Miers as his choice to replace 
her.

A firestorm erupted.  Critics on the right and left complained that she had 
never served as a judge, had no judicial experience or paper trail from 
which to gauge her judicial philosophy and temperament, and that she was 
named strictly because she was a woman.

Her nomination did not survive the withering criticism, and she withdrew, to 
be ultimately replaced by Samuel Alito.

Fast forward to today.  President Obama has just nominated Elena Kagan, the 
current Solicitor General, to replace John Paul Stevens on the Court.  In 
many ways, Kagan mirrors Miers: a female legal eagle with no judicial 
experience, paper trail, or known guiding legal philosophy.

Miers’s nomination went down because fellow conservatives criticized those 
things.  Don’t expect Kagan’s fellow liberals to attack her on the same 
basis.  Conservatives were intellectually honest about what they saw as 
gaping holes in Miers’s qualifications.  I guarantee that liberals will not 
openly question the same voids in Kagan’s experience.  Conservatives raised 
legitimate issues about Miers; liberals will circle the wagons on Kagan.

Miers bit the dust, and she probably deserved to.  Kagan will not bite the 
dust, although she probably deserves to as well.

In the wake of last week’s attempted terrorist bombing in Times Square, legislation is being proposed to strip the would-be bomber of his American citizenship. Team Obama is opposing this bill, a bill at odds with the president’s blueprint for America.

The man who attempted to detonate a car bomb in New York City on May 1, Faisal Shahzad, was born in Pakistan and recently became an American citizen. Senator Joe Lieberman is now pushing legislation to strip Shahzad of his citizenship so that he can be treated as a foreigner in the U.S. legal system.

The pushback from President Obama’s supporters has been swift. Senator Chuck Schumer immediately declared such a bill unconstitutional. On a Sunday morning talk show, Attorney General Eric Holder expressed reluctance to pursue citizenship stripping. And others on the left are spouting off about this as well.

The constitutional law on this question is muddy. In 1958, the Supreme Court upheld a citizenship-stripping law in Perez v. Brownell. But then in 1967, the far-left Warren Court overruled Perez by a 5−4 vote in Afroyim v. Rusk, holding that Congress cannot strip anyone of citizenship unless that person voluntarily renounces it.

Then in the 1980 case of Vance v. Terrazas, the Supreme Court split the difference, moving back in the opposite direction. The Court modified its 1967 holding to clarify that in addition to renouncing American citizenship verbally or in writing, a person can renounce their citizenship by their conduct. The Court also held that whether their conduct amounts to renouncing citizenship can be determined by a “preponderance of the evidence,” meaning that the odds only need to be better than 50−50, instead of a higher standard such as “proof beyond a reasonable doubt.”

So the law is unclear in this case.

The United States is at war with Islamic terrorism. You can make a good argument that conferring with Islamic terrorists and pledging your allegiance to them, and then trying to blow up Americans in the middle of New York City, might reasonably be construed as renouncing your U.S. citizenship.

In fact, there’s another issue in play here that wasn’t on the table in either 1967 or 1980. In order to become a naturalized U.S. citizen, you must take the Oath of Allegiance. In that oath, you swear that you renounce all foreign allegiances, that you will “support and defend the Constitution” against all enemies, foreign and domestic, that you will bear arms in the service of this country against America’s enemies, and that you take this oath “without any mental reservation or purpose of evasion.”

Shahzad took that oath in 2009. Shortly thereafter, he went to Pakistan for five months, where reports are surfacing that he may have sought out terrorist training and contacts.

The question arises: When he took the oath, did he mean it? If not, then he was lying under oath. This very much strengthens the case that a court could hold that his citizenship can be stripped from him.

What should be surprising here is that Team Obama isn’t jumping at this possibility. Although a court might find in Shahzad’s favor, ruling that he cannot be stripped of his citizenship, there’s no precedent that automatically dictates that result. So the government should vigorously press to have such legislation enacted against him, and argue in court as to why the court should uphold it. It should be surprising that they’re willing to throw in the towel instead of fighting.

But it’s not surprising, for one sad reason. As I explain in my new book, The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency, this president seeks to erase the distinctions between citizen and alien in this country. The Constitution draws bright lines between foreign policy versus domestic policy, and between Americans versus foreigners.

The Far Left has long tried to erase those bright lines. They speak of “human rights” and employ other global, universal language when referring to rights. They think that any right good enough for Americans is good enough for every human being on the planet. That’s important for the Shahzad case because being a citizen gives Shahzad a massive battery of rights under U.S. law, which he could use to try to escape punishment.

Such constitutional lines highlight American exceptionalism. As my coauthor and I show in our book, President Obama’s rejection of American exceptionalism is partially designed to further entangle us with transnational organizations like the United Nations, which are beset with rampant corruption, fraud and mismanagement. It’s part of a global “share the wealth” mentality, whereby American treasure goes to other countries (when we’re drowning in debt ourselves) and foreign values and laws are imported into this country and imposed on American citizens.

This makes us more like other countries, where governments have far more power over their citizens and where critical safeguards such as the U.S. Bill of Rights are not in place to protect people against government abuses.

If there’s one area of policy where politics should not intrude, it’s national security. But we’re witnessing yet another example of Team Obama advancing its blueprint to “fundamentally transform the United States of America,” to quote the president himself. These bright constitutional lines exist for our own protection, and we should oppose every effort to erase them.

Although words and the meaning they convey mean everything in the law; words mean very little to people with agendas.  This is bad news.  Worse yet, the U.S. Constitution is filled with old words and phrases that, when read out of context, lose meaning over time.  Most frightening, legal commentators who prefer to sidestep our Constitution to accomplish the progressive-statist agenda continue to bash the virtue of seeking our Constitution’s original meaning.

In lockstep with progressive reforms, a recent book, “Keeping Faith with the Constitution,” adopted the term “constitutional fidelity.”  Goodwin Liu was one of the authors, and the focus of another contributor on this topic.  It is asserted that this term “respects the endurance of our written Constitution” and also “explains how its text and principles retain their authority and legitimacy.”  Filled with anti-Justice Scalia propaganda and criticism, it intends – but fails – to strike the middle ground between those who think original meaning controls and those who think meaning should account for the needs of our “progressing” society.  It does nothing of the sort.

At its core, constitutional fidelity asserts that original meaning (which the authors correctly concede is not strict constructionalism, but rather, an exercise of reading words in the context in which the words were enacted) should be sought when interpreting “concrete provisions,” but not the “broad and general principles.”  It is these broad principles, they assert, that should adapt “in light of the conditions and challenges faced by future generations.”  But constitutional fidelity ignores that there is no principled manner to determine which provisions of the constitution are broad, as opposed to concrete.  One might suppose that any provision best suited to confront society’s next “challenge” would be interpreted in such a way.  This is not law.

Equally untenable are constitutional fidelity’s assertions that settling today’s constitutional disputes by seeking, exclusively, our constitution’s original meaning is radical because of the following reasons: (1) our constitution does not explicitly state the manner in which judge’s are supposed to interpret it; (2) all of the framers did not have a mutual understanding of every constitutional provision; and (3) originalism cannot account for “constitutional understandings that Americans take for granted today.”

The absurdity of the first reason is that the authors assert that constitutional fidelity is acceptable, despite the fact that the constitution also does not provide for it.  It is also of no surprise that the authors of constitutional fidelity provide no examples of any laws that provide for the manner in which they are to be interpreted. Lawmakers write laws; they certainly do not interpret laws or tell judges how to do so.  Constitutional fidelity cites to Marbury v. Madison for its own interpretive principal, asserting that “it is emphatically the province and duty of the judicial department to say what the law is,” and then ignores the same when it is critical of originalism.

And why is it relevant that all of the framers did not have a uniform understanding of our constitution?  It would be laughable to even suggest that all lawmakers today have a mutual understanding of any law that was passed.  The mountains of legislative history used in litigation today prove that point.  Quite hypocritically, constitutional fidelity sees the lack of uniform original understanding as an impediment to originalism but makes no comment on the extraordinary breadth of its own standard that includes “not only social conditions and facts about the world, but also public values and social understandings as reflected in statutes, the common law, and other parts of the legal landscape.”  It is irrelevant to constitutional fidelity that there are no uniform standards here.  At least originalist judges know what they are looking for.

It defies logic to state, as constitutional fidelity does, that originalism is flawed because it cannot explain “settled features of constitutional law” such as Brown v. Board of Education or Roe v. Wade. The fact that the Courts have historically rendered opinions that produced socially acceptable results does not legitimize the process by which the results were obtained.  Moreover, the favorable public opinion of the Court’s decisions means only that people agree with the results.  This fact is irrelevant when determining how our constitution should be interpreted.

The authors’ misunderstanding of baseball and its criticism of Judge John Roberts – then nominee for Chief Justice of the United States Supreme Court – is most indicative of its own infidelity. While now Chief Justice Roberts stated correctly that judges are like umpires whose job is simply to call balls and strikes, constitutional fidelity asserts that baseball fans know that umpires over time have “interpreted the strike zone differently in response to changing aspects and contemporary understandings of the game.”  This is absurd.  Analogous to amending the constitution, Major League Baseball can change the rules of the strike zone at its leisure.  I would pay a high price, however, to see one of the authors of constitutional fidelity serve as an umpire in a baseball game and explain to New York Yankee fans, after losing to the Boston Red Sox, that the last called strike was based not upon MLB’s rules, but the umpire’s evolving understanding of the game.  While the fact that it might happen is inevitable, this is not argument, as constitutional fidelity analogously asserts, that it is acceptable.

Today, this debate is particularly important.  President Barack Obama routinely criticizes the Court.  He inserts his beliefs about the impact of its decisions (ignoring the merits of legal debate), and is now going to appoint his second Supreme Court Justice.  More than likely, the new Justice will share the views of the authors of constitutional fidelity.  President Obama stated recently that Justice Stevens believes – as he does – that “powerful interests must not be allowed to drown out the voices of ordinary citizens.”  With due respect to separation of powers, who cares what President Obama believes the constitution means?  And as far as our constitution goes, constitutional fidelity argues for nothing more than leeway for powerful interests, like President Obama’s, to drown out the voices of the ordinary citizens who created it.

The Courthouse News Service reported Monday that Chevron Corp. asked a federal judge Friday to order the release of outtakes from Joseph Berlinger’s 2009 documentary, “CRUDE” (trailer below). Today, Judge Lewis A. Kaplan granted the San Ramon, Calif.-based oil giant’s request, leaving one question unanswered: Will the footage exonerate the company and bring an end to its maddening 17-year-old court battle in the South American country?

In the conclusion of a 31-page decision issued in the United States District Court of the Southern District of New York, Judge Kaplan wrote:

The Court expresses no view as to whether the concerns of either side are supported by proof of improper political influence, corruption, or other misconduct affecting the Ecuadorian As Justice Brandeis once wrote, however, “sunshine is said to the best of disinfectants.” Review of Berlinger’s outtakes will contribute to the goal of seeing not only that justice is done, but that it appears to be done.

Three portions of the documentary* highlighted by Chevron in their request to the judge involve Steven Donziger, the New York-based attorney leading the lawsuit against Chevron, Ecuadoran President Rafael Correa and Dr. Carlos Beristain, a one-time expert witness in the case:

A. Plaintiffs’ Counsel Meets with Expert Witness — Crude contains footage of a number of meetings that took place in the Dureno community of the indigenous Cofan people. A version of Crude “streamed” over Netflix depicts one such meeting, at which Dr. Beristain, an expert who contributed to Cabrera’s neutral damages assessment, is shown working directly with both the Cofan people and plaintiffs’ counsel. Berlinger, however, altered the scene at the direction of plaintiffs’ counsel to conceal all images of Dr. Beristain before Crude was released on DVD. The interaction between plaintiffs’ counsel and Dr. Beristain therefore does not appear in the final version of Crude sold on DVD in the United States.

B. Plaintiff’s Counsel Interferes with Judicial Inspection — In another scene of Crude, Donziger, one of plaintiffs’ lead counsel, persuades an Ecuadorian judge, apparently in the presence of Chevron’s lawyers and news media, to block the judicial inspection of a laboratory allegedly being used by the Lago Agrio plaintiffs to test for environmental contamination. Donziger describes his use of “pressure tactics” to influence the judge and concedes that “[t]his is something you would never do in the United States, but Ecuador, you know, this is how the game is played, it’s dirty.”

C. Plaintiffs’ Representatives Meet with the Ecuadorian Government — In another scene, a representative of the plaintiffs informs Donziger that he had left the office of President Correa “after coordinating everything.” Donziger declares, “Congratulations. We’ve achieved something very important in this case . . . . Now we are friends with the President.” The film then offers a glimpse of a meeting between President Correa and plaintiffs’ counsel that takes place on a helicopter. Later on, President Correa embraces Donziger and says, “Wonderful, keep it up!” Donziger explains also that President Correa had called for criminal prosecutions to proceed against those who engineered the Settlement and Final Release. “Correa just said that anyone in the Ecuador government who approved the so-called remediation is now going to be subject to litigation in Ecuador. Those guys are shittin’ in their pants right now.”

This news — and the potentially huge implications that accompanies it — comes one day after I published Chevron Accuses Plaintiff of Lying in $27B Lawsuit, the most recent in a series of more than three-dozen posts I’ve published during the past year about the lawsuit which has the potential to cost Chevron $27 billion.

*Note: I removed the citation numbers from the three points above as they appeared in the official request. To see them, click here.

Earlier this week it was reported that the Obama White House removed confessed terrorist Faisal Shahzad from the Department of Homeland Security travel lookout list sometime after Barack Obama came into office.

Terrorist Faisal Shahzad had substantial connections to the Taliban, reached out to the Taliban, was influenced by Yemeni terror leader Anwar al Awlaki, made at least a dozen return trips to Pakistan since arriving in the United States in 1999, and he bought a one way ticket with cash to Pakistan.

Now we find out that he was “blogging” and asking for jihad as far back as 2006 but that the Obama Administration took him off the terror watch list anyway.

Terror expert Walid Phares weighed in on the confessed Times Square bomber today in an interview on FOX News:

To be clear, Shahzad was actually commenting on terrorist websites and not actually blogging.

Earlier this week it was discovered that Shahzad was posting on terror websites since 2006.

FOX News reported:

FoxNews.com has uncovered several dozens of postings by a man named Faisal Shahzad on radical Islamist Salafist websites devoted to a variety of different jihadist sects.

Experts suspect this is the same Faisal Shahzad whom authorities have charged with plotting to explode a massive car bomb in New York on Saturday. If so, then he has been educating himself on the Internet for years on the legitimacy of holy war.

Shahzad visited numerous websites devoted to ideological discussion of Islamism and Shariah law. His apparent online posts date back to at least 2006 — three years before the Times Square suspect became a naturalized American citizen.

“If the person on these websites is indeed the suspected bomber, the postings show that he was intellectually thinking about engaging in jihadism for a few years,” said Dr. Walid Phares, director of the Future Terrorism Project at the Foundation for Defense of Democracies. “Knowing that, the ideology of jihadism often has inspired violence and terrorism…

“These can be coined as Islamist Salafist websites where lots of material is posted, including theological, ideological and political texts and blogs,” Phares said, noting that he saw discussions about fatwas, jihad and other Islamist causes on these sites.”

As Walid Phares said in an interview on FOX and Friends earlier in the week, Faisal was no lone wolf:

“When a guy makes a phone call, he’s no longer a lone wolf. A lone wolf is somebody who doesn’t tell anybody else about the issue. He doesn’t share that information. He made phone calls… He may be deployed as a lone wolf. It is much easier to send one terrorist as 10 terrorists. But, he is not alone with conducting terror.”

If the Obama Administration removed a guy like Faisal Shahzad from the terror watch list sometime after 2008, just what does a guy have to do to make Team Obama’s list?

Sixth Circuit Justice Diane Wood, on President Obama’s short list for the Supreme Court, has drawn fire for supporting Justice Blackmun’s assertion in Roe v. Wade that abortion was among “a core set of individual rights exists that neither the states nor the federal government may trample.”

Taken by itself, this statement should be unobjectionable to anyone who believes in such a thing as “rights.” The real problem is that liberal judges have taken it upon themselves to decide which rights are worthy of constitutional protection.

Beginning in the progressive era, the left has articulated a double-standard of rights, one in which “property” rights are separated from and subordinated to “non-property” rights, often referred to as “personal” rights or “human” rights. Part of their argument for this distinction was that the founders themselves, or their nineteenth-century interpreters, made the same distinction, but put economic or property rights above human rights. Theodore Roosevelt, in his progressive phase, claimed that Abraham Lincoln “showed the proper sense of proportion in his relative estimates of capital and labor, of human rights and property rights,” by giving preference to personal rather than property rights.

But this is a fundamental distortion of the founders’ view. They never made any such distinction.

Rather, land, capital, money or other tangible economic rights were simply one facet of “property,” which included anything, tangible or intangible, to which one could claim ownership. This is the meaning of the Latin root of the word, proprius, a possessive pronoun meaning “mine.” When John Locke used the term “property,” he meant this—everything to which one had a right. When he spoke of land, capital, chattels, or money, he used the term “estates.” James Madison echoed this in a 1792 essay. “It embraces every thing to which a man may attach a value and have a right; and which leaves to everyone else the like advantage…. A man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”

It’s certainly true that the nineteenth-century Supreme Court, in the era of what is called “laissez-faire jurisprudence,” did protect economic rights, and did not develop a robust doctrine of non-economic rights. But it never separated them or made invidious distinctions between them, believing, as it did, that the right to property was “the guardian of every other right.” But the progressives were able to get the Supreme Court to abandon the protection of economic rights, while preserving judicial review for non-economic rights. It did so in a very famous footnote to a decision in which it upheld a congressional act prohibiting the interstate shipment of “filled milk” (an interesting story in itself—another place where the dairy lobby has left its mark on constitutional law).

The case was U.S. v. Carolene Products, and the Court noted, “The existence of facts supporting the legislative judgment is to be presumed,” in cases involving “ordinary commercial transactions.” In economic regulation, the Court would assume that legislation “rests upon some rational basis within the knowledge and experience of the legislators.” That is to say, the Court would accept any but the most wildly irrational basis for economic regulation. But “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth,” Justice Stone wrote. “It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. The note also suggested that the Court would scrutinize “statutes directed at particular religious, or national, or racial minorities,” and also be alert to “prejudice against discrete and insular minorities [which] may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”

Simply put, some rights, and some groups, were entitled to more constitutional protection than others. This doctrine became known as the “preferred freedoms” or “double standard” test. The Court has developed it largely by applying the Bill of Rights to the states. It has also lately admitted that it was applying the due process clause of the Fourteenth Amendment to the states—what is called “substantive due process,” and which was precisely what the progressives accused the Supreme Court of doing before the New Deal to protect economic rights. The difference with the new substantive due process, though, is that it is used for the right rights and the right groups, by the right judges.

If Justice Wood is nominated, she—or any other nominee—should be able to give an account of her standard of rights determination.

President Obama, Senator Reid, and Speaker Pelosi showed their ability to ruthlessly ram through their legislative agenda with a combination of procedural tricks, sleight-of-hand, and painful arm-twisting, all of which could happen again. They also hope to have a Supreme Court which will rubber-stamp their legislative agenda and thus guarantee its long-term survival. If one agrees with Santayana’s “those who cannot remember the past are condemned to repeat it,” then it is instructive to examine the way that President Franklin Delano Roosevelt viciously attacked and tried to control the Supreme Court in order to secure his New Deal agenda.

In 1935 the Court struck down as unconstitutional certain parts of FDR’s New Deal. The essence of the Court’s common-sense reasoning was that Congress, the legislative branch, may not avoid its lawmaking responsibilities and punt them to the President, the executive branch. Moreover, the Court in Humphrey’s Executor v. United States, 295 U.S. 602 (1935) further irked FDR because the Court held that FDR had to follow the law and could not arbitrarily fire a Federal Trade Commission commissioner, Mr. William Humphrey, a Republican whom FDR believed did not support the New Deal with sufficient enthusiasm.

FDR did not like that, because his New Deal depended on creating a massive federal regulatory bureaucracy within his executive branch control. So, on February 5, 1937, FDR announced his infamous “Court-Packing Plan,” directly attacked the Supreme Court, and planned to stuff the Court with his loyalist lackeys. FDR followed up with a March 9, 1937 Fireside Chat where he said that America needed his Court-Packing Plan and “must take action to save the Constitution from the Court, and the Court from itself.”

On March 29, 1937, the Supreme Court bowed to FDR’s unprecedented political attacks and decided three cases in favor of the New Deal. By 1941 the Supreme Court’s “Four Horsemen,” Justices Butler, McReynolds, Sutherland and Van Devanter, were gone, leaving no one who dared speak truth to power: that Congress cannot shirk its constitutional responsibilities and that the president must follow the law. Thus, the New Deal Juggernaut rolled full-steam ahead with no one left to protect the American people from the huge federal regulatory bureaucracy that still pervades every aspect of American life and even spawned a new area of law, Administrative Law.

Today there are and will be many legal challenges to the Obama-Pelosi agenda, including health-care, financial regulation, cap-and-trade, immigration, and whatever else lurks in their legislative pipeline.

When it comes to Supreme Court confirmation fights, however, the media often focuses on the nominee’s controversial personal problems, if any, and on hot-button social issues like abortion.

This time, let’s try something different. I expect President Obama to announce his Supreme Court nominee within the next week or so. Let’s raise the level of discussion and carefully analyze the nominee’s views on, for example, issues such as limits on executive branch authority and Commerce Clause power. Let’s also be mindful of history’s lessons. FDR’s hunger for rubber-stamp justices hurt America. President Obama may nominate whomever he likes, but we must not allow the Democrat Senate to bully us into accepting a rubber-stamp justice, or, even worse, a justice who self-rationalizes manipulating or ignoring the Constitution in order to impose preferred political or policy preferences from the bench.

Earlier this week, on May 3rd, we witnessed liberty in action:  a Clinton-appointed federal judge took the government to task over its continued holding of the Hutaree “Christian militia” members in Michigan.

They can try to spin it any way they want, but the government lost this one, big-time.  There are two fundamental rights implicated in the judge’s ruling — free speech, and the right to a reasonable bail.  Both of these fundamental, constitutionally protected rights are absolutely vital to our system of ordered liberty, and to the very existence of our republican form of government.  Judge Roberts’ ruling thus deserves much wider discussion than the old media has given it; it should be printed out and taught to every high-school kid in the US.  It shows how our republic — and our criminal justice system — are meant to work.

Is this a politically motivated prosecution?

It is no secret that even before President Obama was elected, the left began focusing once again on what they call “right wing militia” groups.  To hear them talk, every single militia member is a budding young Timothy McVeigh.  Thus, there was some alarm but not a great deal of surprise when nine members of the “Christian militia” group called the Hutaree were arrested in Michigan.  Now, thanks to an extensive order written by the federal judge in charge of the case, we now know that the case against the Hutaree is thin, and based almost entirely on the theory that they exceeded the allowable bounds of free speech.  One could very well argue that by definition this is a politically motivated prosecution, since it focuses on what the government is terming “hate speech.”

I’ve included a copy of the Court’s ruling with this post — please take the time to read it.  You will know a great deal more about the evidence against these men.  You may be fairly shocked at at paucity of evidence against them.  You may even wonder how easy it might be to start with “fringe” groups like the Hutaree, and then draw an ever tighter stranglehold around the free speech rights of other “radical right wing groups,” like your local TEA Party members.  Remember, these men never committed any act of violence against any person — they are being prosecuted for their political speech alone.

Perhaps you are sympathetic to the Hutaree, perhaps you are not, but every one of us must understand that what happens to them affects the liberty interests of every person in the USA.  Their case is clearly one in which we are being called upon to determine the boundaries of free speech. At stake is much more than your freedom ability to speak out and criticize the government that you elect and that you put in power — what’s at stake is your freedom from imprisonment for voicing your political views.

Sorry, Monterrey, but the entire USA is a free speech zone!

Do not be misled; the Hutaree case is all about the limits of your first amendment right to free speech — specifically, your right to be free from imprisonment for engaging in political speech that others find offensive and dangerous.  However, “free speech” is not the only liberty-based value at stake; the age-old right to bail has been attacked by the government, who have sought to keep the Hutaree members incarcerated until trial.  Fortunately, for all liberty-loving Americans, the federal judge in charge of the case has sided squarely with truth, justice and the American Way.

Bail — it’s not just for criminals, it’s for all of us.

In America, our values dictate that we should usually wait until a person has actually been convicted of wrongdoing before we incarcerate him; not always, but usually.  After all, what good is the right to a fair trial if you can be forced to “do the time” even when you did not “do the crime”?

The Eighth Amendment to the Constitution prohibits “excessive bail,” and was based on the English common law system that we had inherited.  The right to a reasonable bail was one of the things that the English (and later, the Americans) proudly claimed made them “free.”  It should thus be no surprise that in passing laws regarding pre-trial detention, “Congress envisioned the pretrial detention of only a fraction of accused individuals awaiting trial.”  United States v. Orta, 760 F.2d 887, 891-92 (8th Cir. 1985).

However, bail can be denied in certain circumstances, and the Hutaree members are charged with some very serious crimes:  (1) Seditious Conspiracy,  (2) Attempt to Use Weapons of Mass Destruction, (3) Carrying, Using, and Possessing a Firearm During and in Relation to a Crime of Violence, and (4) Teaching/Demonstrating Use of Explosive Materials (though only two Hutaree members are charged with the last crime).  In fact, Judge Roberts pointed out that “[t]wo of the charges against the Defendants – Attempt to Use Weapons of Mass Destruction; and, Carrying, Using, and Possessing a Firearm During and in Relation to a Crime of Violence” are so serious that they “create a presumption that no condition, or combination of conditions, will reasonably assure Defendants’ appearance in Court as required, and the safety of the community.”  Order, page 7.  This means that anyone who is merely charged with these crimes will have a very hard time convincing a court that he should be released pending trial, even if the evidence against him is less than convincing.

So, these charges flip the standard upside down — merely be charged with these crimes creates a presumption that the defendant cannot be released pending trial.  Once can see why the judge appears very uncomfortable with this new standard.  After all, the government has tremendous leeway in its ability to charge crimes.  Any of us who have defended criminal cases in court know that prosecutors routinely charge people in a way that forces them into a box — either plead to something lesser, or go to trial and risk many more years in prison.  Prosecutors also routinely charge cases in such a way as to insure that defendants will stay in jail for several months  — even years, sometimes — before they go to trial.  It becomes far easier to get a conviction this way.

I’m not passing judgment on the prosecutors who use these tactics, though, because altogether I believe that the criminal justice system is about as fair as it can be.  However, when the charges are political in nature, there is a great danger that these tactics can be used to squelch political dissent.  Instead of keeping society safe and protecting our liberty, these tactics can be used to create an authoritarian police state.

Judge Roberts, however, pointed out that ” the government may not merely come before the trial court, present its indictment, and thereby send the defendant off to jail, foreclosing any further discussion. Rather the defendant . . . must be afforded the opportunity for a hearing at which he may come forward with evidence to meet his burden of production, leaving on the government the ultimate burden of persuasion.”  Order, page 7, citing United States v. Hurtado, 779 F.2d 1467, 1478 (11th Cir. 1985).  So the court-appointed federal public defenders submitted their arguments to the court on behalf of the Hutaree, with results that have apparently stunned the prosecutors.

“Defendants believe that because the weight of the evidence is insubstantial, the Court should have serious reservations about denying them bail… the Government failed to persuade the Court that Defendants must be held until trial.”

In essence, the court has smacked the prosecutors in the face by saying that there is so very little weight to the evidence in their case that, even though two of the charges are extremely serious, the defendants cannot be held without bail pending trial:

Nonetheless, the weight of the evidence the Government has against Defendants is an important consideration. In fact, the seriousness of the charged offenses, the weight of the evidence, and whether the Defendants are a danger to the community, are inextricably intertwined; the Court’s own Pretrial Services Agency, which makes bond recommendations, concluded that but for the seriousness of the offenses charged, the Defendants are all people it would normally recommend for release on bond.

Allow me to translate this for you:  the evidence was thin enough that the Court would not normally hold these men without bail.  However, because two of the charges are so serious, they have been held without bail until now.

Since the charges are so serious, the judge has to be pretty convinced that the government’s case is very weak before she will let the men out on bail.  Here is the key to the entire case:

The United States is correct that it need not wait until people are killed before it arrests conspirators. But, the Defendants are also correct: their right to engage in hatefilled, venomous speech, is a right that deserves First Amendment protection. Because speech is so much a part of the Government’s case, Defendants urge the Court to look carefully at the evidence in making its bond decision. Defendants believe that because the weight of the evidence is insubstantial, the Court should have serious reservations about denying them bail. Due to the complexity of the case, and the number of Defendants, Defendants say they could be in jail for a long time, awaiting trial.

Did you get that, liberty-lovers?  The right to engage in “hatefilled, venomous speech” is protected by the First Amendment.  This is definitely not the left’s understanding at all; nowadays, the Liberal/Progressive movement treats any speech that they do not like as “hate speech,” and are busy passing laws to try to criminalize it.  For the left, Judge Roberts’ ruling must really sting.

It's all in the Constitution.

The Court did address the problem that the difference between protected free political speech and illegally conspiring to commit serious, violent crimes is “not always clear.”  The Court made cited “the clear principle that crime masquerading as speech deserves no First Amendment protection.”  Yet, despite the undeniably high standard that the Hutaree members were subjected to, and the very lenient standard that the government’s case was held to, Judge Roberts found that (1) Defendants met their burden to produce evidence in favor of release; and (2) the Government failed to persuade the Court that Defendants must be held until trial.”

In short, the evidence of actual wrongdoing on the part of the Hutaree members was just far too thin to justify holding them without bail.  Despite a two-year investigation into the group, despite the seriousness of the charges, despite even the videotaped evidence of the UN flag being burned by the Hutaree (to the shock and horror of Liberals everywhere), the Judge did not find the evidence against them to amount to anything other than hate-speech.

True, this is not a “not guilty” finding, but it certainly does not bode well for the government’s case.  In this case, the proof was considered along with the serious nature of the charges, and there was a presumption against releasing the men.   Convictions, however, require proof “beyond a reasonable doubt,” and the government must overcome a presumption of innocence at trial.  They are not out of the woods yet, but certainly, the Hutaree members have great cause for celebration today.

And, regardless of the ultimate outcome of this prosecution, all liberty-loving Americans have cause to celebrate Judge Roberts’ ruling.  It is a victory for us all.

The judge’s order may be found below:

Order revoking Hutaree detention

President Obama made the right decision to appeal the ruling issued by U.S. District Judge Barbara Crabb, which held that the statute establishing the National Day of Prayer violates the Establishment Clause and is therefore unconstitutional.

In so doing, the judge substituted her opinion for 135 calls to prayer by presidents of the United States, the actions of virtually every Congress that has been in existence both before and after the Constitution was written, and the actions of all 50 state legislatures. Her decision is a part of the continuing assault on America’s religious heritage. America’s Judeo-Christian principles are so interwoven in a tapestry of freedom and liberty, that to begin to unravel one is to unravel the other.

Our Founding Fathers spoke eloquently not only about their personal belief in God, but also about how our nascent nation was called to a higher purpose by God. Out of respect for that purposeful birth, the first act of the U.S. Congress was to appoint a minister to lead the legislators in prayer. And, in deep and abiding faith, Presidents from George Washington to Barack Obama have called upon God for his protection, mercy, and guidance.

These acts are instructive; they show how deep America’s religious roots run. The Declaration could not have been clearer: “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….”

The freedoms and liberties that we enjoy are granted by God. They are not man-made, nor government-granted. Man or State may shackle us, may separate us from our freedom; but ultimately, we will reclaim what is rightfully ours. Government’s purpose is to preserve man’s rights and when government treads on those rights, it breaks a sacred covenant. Then, as the Declaration states, it is the people’s “right, it is their duty” to reclaim what God has given.

Judge Crabb acknowledged America’s religious heritage; but she dismissed it. She would not even grant that the National Day of Prayer was an act of “ceremonial deism,” a Supreme Court construct that states that rote repetition of religious phrases are more ceremonial than meaningful and therefore not in violation of the Constitution.

She would have been well-advised to read a recent decision by the Ninth Circuit Court of Appeals regarding the words “under God” in the Pledge of Allegiance. In a stunning judicial victory this March, American school children won the right to recite the Pledge in its entirety. What made this victory so stunning was not that the courts permitted use of this phrase in this daily educational ritual. Courts had done so before. It was not even that this time the court in question was the Ninth Circuit Court of Appeals – notorious for its liberal activism from the bench.

What made this victory so extraordinary was the court’s reason for affirming the right to say “under God” in the Pledge. In past cases, the courts had granted this right because they said the phrase had been so robotically applied throughout the years that it was devoid of religious meaning. This time, in this case, the Ninth Circuit affirmed the right to say “under God” precisely because of their meaning.

Borrowing the argument presented by the Becket Fund for Religious Liberty, the court stated that those two words are chock-full of meaning, a bountiful statement of American history and philosophy, and that is why they can and should be a part of our nation’s pledge. As the Becket Fund stated in its brief, “It is uncontestable that since even before the Declaration of Independence, it has been an important part of our national ethos that we have inalienable rights that the State cannot take away, because the source of those inalienable rights is an authority higher than the State.”

The religious underpinnings of our nation are not evident simply because the Founding Fathers wrote about their belief in God – although there is more than ample evidence of their own faith. Our nation’s essence is that rights belong to the individual, not the collective; that our rights are God-given and not simply granted by the government; that our rights are inalienable. And that is all the proof needed to say America is truly one nation under God.

Our Founding Fathers knew the best way to preserve our God-given rights was not to restrict the entrance to the marketplace of ideas, but rather to keep it wider. They did not want faith and religion to control or dominate that marketplace, but they realized faith and religion must have a seat at the table.

President Obama made the right decision to appeal the ruling issued by U.S. District Judge Barbara Crabb, which held that the statute establishing the National Day of Prayer violates the Establishment Clause and is therefore unconstitutional.

In so doing, the judge substituted her opinion for 135 calls to prayer by presidents of the United States, the actions of virtually every Congress that has been in existence both before and after the Constitution was written, and the actions of all 50 state legislatures. Her decision is a part of the continuing assault on America’s religious heritage. America’s Judeo-Christian principles are so interwoven in a tapestry of freedom and liberty, that to begin to unravel one is to unravel the other.

Our Founding Fathers spoke eloquently not only about their personal belief in God, but also about how our nascent nation was called to a higher purpose by God. Out of respect for that purposeful birth, the first act of the U.S. Congress was to appoint a minister to lead the legislators in prayer. And, in deep and abiding faith, Presidents from George Washington to Barack Obama have called upon God for his protection, mercy, and guidance.

These acts are instructive; they show how deep America’s religious roots run. The Declaration could not have been clearer: “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….”

The freedoms and liberties that we enjoy are granted by God. They are not man-made, nor government-granted. Man or State may shackle us, may separate us from our freedom; but ultimately, we will reclaim what is rightfully ours. Government’s purpose is to preserve man’s rights and when government treads on those rights, it breaks a sacred covenant. Then, as the Declaration states, it is the people’s “right, it is their duty” to reclaim what God has given.

Judge Crabb acknowledged America’s religious heritage; but she dismissed it. She would not even grant that the National Day of Prayer was an act of “ceremonial deism,” a Supreme Court construct that states that rote repetition of religious phrases are more ceremonial than meaningful and therefore not in violation of the Constitution.

She would have been well-advised to read a recent decision by the Ninth Circuit Court of Appeals regarding the words “under God” in the Pledge of Allegiance. In a stunning judicial victory this March, American school children won the right to recite the Pledge in its entirety. What made this victory so stunning was not that the courts permitted use of this phrase in this daily educational ritual. Courts had done so before. It was not even that this time the court in question was the Ninth Circuit Court of Appeals – notorious for its liberal activism from the bench.

What made this victory so extraordinary was the court’s reason for affirming the right to say “under God” in the Pledge. In past cases, the courts had granted this right because they said the phrase had been so robotically applied throughout the years that it was devoid of religious meaning. This time, in this case, the Ninth Circuit affirmed the right to say “under God” precisely because of their meaning.

Borrowing the argument presented by the Becket Fund for Religious Liberty, the court stated that those two words are chock-full of meaning, a bountiful statement of American history and philosophy, and that is why they can and should be a part of our nation’s pledge. As the Becket Fund stated in its brief, “It is uncontestable that since even before the Declaration of Independence, it has been an important part of our national ethos that we have inalienable rights that the State cannot take away, because the source of those inalienable rights is an authority higher than the State.”

The religious underpinnings of our nation are not evident simply because the Founding Fathers wrote about their belief in God – although there is more than ample evidence of their own faith. Our nation’s essence is that rights belong to the individual, not the collective; that our rights are God-given and not simply granted by the government; that our rights are inalienable. And that is all the proof needed to say America is truly one nation under God.

Our Founding Fathers knew the best way to preserve our God-given rights was not to restrict the entrance to the marketplace of ideas, but rather to keep it wider. They did not want faith and religion to control or dominate that marketplace, but they realized faith and religion must have a seat at the table.

A powerful irony of unintended consequences of Arizona’s new immigration law is emerging, which is that the law will only harm innocent Arizonans. Perception can be more powerful than reality, and even if the millions of Americans who oppose the new law are wrong, they can bring harm as a result of a law intended to help Arizona.

On May 6, La Raza, the country’s largest civil rights group and 19 other labor and civil rights groups, including the Major League Baseball Players Association, announced a nationwide boycott of all economic activities related to Arizona. The state’s hotel and lodging association, for example, reports that 19 meetings have been cancelled, at an economic loss of $6 million. This is only the beginning. Protesters of the law may or may not be right, but the intensity of their anger will bring punitive action to the state.

We are learning after the fact the deleterious effects of S. B. 1070, reminding us a little of the health care law that Congress recently passed with few knowing what was in the bill or what it would do.

In attempting to clear up the matter of whether this new law violates the constitutional rights of the 4th and 14th Amendments, Kris Kobach, a law professor who helped draft the law, reports that police officers cannot willy nilly simply demand identification without probable cause from someone who “looks Hispanic.” He argues that there must be “lawful contact” and that “the most likely context where this law would come into play is a traffic stop.”

Now look at what Koback just confessed–”a traffic stop.” How many of Arizona’s 500,000 illegal immigrants are going to be caught primarily at traffic stops? A relatively minuscule number. Besides, Arizona doesn’t even need a new law for this because traffic violators must produce a driver’s license that proves legal residency.

Arizona, like virtually all states in the country, is broke, suffering deficits for an indefinite time to come. It has no money to hire probably the thousands of law enforcement officials necessary to find 500,000 illegal immigrants. And if it can only afford the incumbent number of police officers to search for a half million immigrants, their duties will be entirely distracted from pursuing more serious crimes–murder, rape, burglary, and the like.

It gets financially worse: there will be a multitude of lawsuits against municipalities that are already broke, with no kitty or time whatsoever for court battles. City coffers will be further reduced by the loss of tax dollars from tourism boycotts.

So there you have the unintended consequences of the new law: Find relatively few illegal immigrants at “traffic stops”; require identification at a traffic stop that is redundant to a driver’s license; go further in debt to hire the multitude of police officers needed to find 500,000 illegal immigrants; go even further in debt by fighting lawsuits in court; suffer losses in tax revenue from boycotts. And what do you end up with? Huge debt, with few immigrants caught.

The only practical solution to the immigration influx into Arizona is not S. B. 1070, but secure borders–and this the federal government must do now. Arizona’s legislature should repeal the law, which now is bringing only gratuitous harm to the state.

Note: Professor Trowbridge is former chief of staff to Chief Justice Warren Burger and the Commission on the Bicentennial of the U. S. Constitution.

Remember when you couldn’t turn on nightly newscasts without hearing something about CIA employee Valerie Plame being “outed” by the Bush Administration? Democrat House Chairman held hearings. Grand juries were impaneled. A special prosecutor was appointed and the media pursued every possible angle.

Now consider a similar case, but with different actors. Have you heard of the group of lawyers associated with the American Civil Liberties Union self titled the “John Adams Project”? These folks apparently hired private investigators to take pictures of CIA agents they believe may have interrogated terrorists after September 11th. They then passed these pictures on to the lawyers defending said terrorists in hopes that one of them will accuse the agents of torture. These photos of covert CIA agents were later found in the cells of al-Qaeda members being held at Guantanamo Bay.

The Obama Justice Department is quietly investigating the lawyers associated with the John Adams Project who may have violated a number of laws in place to protect our covert operatives and their families. But so far, with few exceptions, the media and their friends on Capitol Hill haven’t found this case nearly as interesting as Valerie Plame. Could it have anything to do with the ideological bent of the perpetrators?

Reflecting on his life, John Adams called his defense of British soldiers after the Boston massacre “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.” I couldn’t agree more. Sadly, an insidious group of lawyers associated with the ACLU only tarnish Adam’s reputation by seeking to hide their subversive acts behind the reputation of our second President.

This week, I will be sending a letter to President Obama calling for a full and immediate accounting of any individuals currently or formerly employed by the Federal government who may have assisted this project in anyway. I already have a dozen Congressmen on this letter and hope to have many more by the time I send it, to make it clear to the President that we are very concerned about what happened. Our country deserves to know the truth about the John Adams Project.

Mexican President Felipe Calderon asked for it when he attacked Arizona’s new immigration law as a “violation of human rights.”

Arizona Sen. Jon Kyl (R) and others responded to Calderon’s attacks by pointing out the hypocrisy. Anyone who has compared Mexico’s laws on immigration with ours would dismiss ours as simply weak-kneed.

The Washington Times and other publications reported over the weekend that entering Mexico illegally is a felony carrying a two-year prison sentence. If one can survive a term in a Mexican prison, expulsion is next. If caught trying to re-enter, one can get yet another 10 years, and anyone caught with an expired visa can get six years.

Whether these penalties have prevented a flood of illegal immigrants from the north or whether they just seem to be working because no one really wants to break in to Mexico is a question for another day.

It is also a felony to assist an illegal in Mexico, and woe unto anyone who hires one. Even those entering the country legally can be sent home if Mexican authorities determine that they, for example, “lack the necessary funds for their sustenance.”

What The Washington Times didn’t point out is that under Mexican law, every citizen is, in effect, deputized to ferret out, rat out and even make a citizen’s arrest of any folks they think should be checked out as possibly “illegal.” Whether or not citizens can base such suspicions on appearance or color is not clear, but one might reasonably conclude most of those questioned differ in some physical respect from your average Mexican.

The bottom line is that if Arizona Gov. Jan Brewer “violated” human rights by signing her state’s new immigration law, Calderon ought to be hauled before the International Criminal Court for the policies he oversees.

Of course, Arizona faces a different problem from Mexico. Nearly half a million illegals have streamed into the state, and more are coming every day. Many of them are hardworking and otherwise law-abiding men and women who, had they entered legally, would no doubt have been welcomed with open arms by a state that is itself almost 30 percent Hispanic. Among them, however, are thousands of gangsters, drug dealers and gang members who are making life along the state’s southern border a dangerous living hell for her citizens.

Arizonans have been pleading and demanding that Washington do something about the problem for years — a futile enterprise, it turns out, both because of the partisan wrangling over comprehensive immigration reform and because most lawmakers and commentators aren’t much concerned with conditions they don’t experience on a day-to-day basis. Finally the state decided to act by authorizing state and local law enforcement officers under certain circumstances to ascertain the immigration status of someone they’ve stopped for other reasons.

The new law does not do what its critics claim, which is to authorize cops to wander the streets of Arizona demanding anyone who looks Hispanic to “produce their papers.” And Mr. Calderon is not the only president who has unfairly mischaracterized or hypocritically attacked it.

Last week, President Barack Obama and his Democratic allies unashamedly did what they charged Republicans had done during the healthcare debate. They attacked Arizona’s attempt to deal with illegal immigration before reading the legislation they opposed or consciously mischaracterizing what it does.

In fact, the Arizona law prohibits checking the status of crime victims and witnesses so as to avoid creating an atmosphere in which they won’t feel comfortable coming forward, and imposes greater restrictions on state and local law enforcement officers than required under existing Supreme Court rulings.

The administration’s response has not been reasoned or reasonable. Homeland Security Chief Janet Napolitano has said the feds may refuse to handle cases arising under the new law; Attorney General Eric Holder wants to challenge it in court; and the president seems to hope he can use it to inflame Hispanic voters around the country to his party’s benefit. This is apparently what passes for responsible leadership in today’s Washington.

The Arizona bill is far, far from perfect and won’t solve all of that state’s problems, but it is a mistake to criticize Gov. Brewer or the State Legislature for trying to come to grips with a problem those presumably responsible for securing our borders and developing a rational immigration policy have ignored.

This column originally appeared in The Hill.

The video sharing site YouTube.com recently started blocking access to countless parodies of the 2004 German movie Downfall, a critically acclaimed film that chronicles Adolf Hitler’s final days in a Berlin bunker.

The parodies take off from a powerful monologue by the great actor Bruno Ganz and the original joke version had Hitler being banned from XBox Live for bad behavior. Other examples feature Hitler trying to score Miley Cyrus concert tickets, counseling Conan O’Brien after losing a late-night slot to Jay Leno, and much more.

It’s understandable why Downfall’s production company, Constantin Film, might be upset that such a serious movie is being burlesqued, but pushing YouTube to ban the parodies is a terrible idea for at least three reasons:

1. It’s fair use! The parodies, which transform a few minutes of a three-hour movie, are clearly legit under existing copyright laws. Because they clearly transform the original and have no possibility of confusing viewers, the parodies are clearly protected speech.

2. This is free promotion! As George Lucas could tell the filmmakers, fan-generated videos help keep the original source material vital and relevant. Lucas used to try to police all Star Wars knock-offs, until he realized that his audience was promoting his films more effectively than he ever could. More people have surely seen Downfall due to the popularity of the parodies.

3. Let’s keep the Internet creative! The greatest cultural development over the past 20 or so years has been technologies that allow producers and consumers to create and enjoy an ever-increasing array of creative expression in an ever-increasing array of circumstances. This development is nowhere more powerful than on the Internet, which has unleashed a whole new universe of writing, music, video, and more. Indeed, YouTube is itself one of the great conduits of cyberspace. Pulling down the Downfall parodies may be within YouTube’s rights, but it nonetheless strikes a blow to the heart of what is totally awesome about the Internet.

“3 Reason YouTube Shouldn’t Censor Downfall Parodies” is written and produced by Meredith Bragg and Nick Gillespie, who also hosts.

Approximately 2:49 minutes. Go to Reason.tv for iPod, HD, and audio versions. Subscribe to Reason.tv’s YouTube channel for automatic notification when new material goes live.

April was a busy month for bad:   lame financial reform legislation, served up three days in a row like rancid leftovers, SEC fraud filings, Wall Street Hearings in Congress, Greek bailouts, oil spills in the Gulf of Mexico and car bombs in Times Square.  With so much occurring, on so many fronts, little attention has been paid to President Obama’s often inflammatory commencement speech at the University of Michigan.

Let’s consider a few of President’s Obama’s pearls of wisdom that he shared with Michigan graduates.

“All you hear in Washington is the clamor of politics – a noise that can drown out the voices of the people who sent you there.” This, of course, is precious, coming as it does from  the leader of the Democratic party, which had to twist arms and bribe legislators to vote for a flawed healthcare bill because members of congress–who were listening to the “voices of the people”–were afraid to vote for a bloated bill that did little to address the most pressing problems in healthcare, a bill which their constituents loudly and repeatedly told congress they didn’t want.

“We’ve got politicians calling each other all sorts of unflattering names.” which may be why in 400 speeches and Q&A sessions, delivered in his first year in office, Obama finds occasion to demonize or blame President George W. Bush, and why Obama, 16 months  into his presidency, continues to use Bush as the whipping boy for bad left wing policies.

“The media tends to play up every hint of conflict, because it makes for a sexier story – which means anyone interested in getting coverage feels compelled to make the most outrageous comments.” This may explain Obama’s unexpected attack, during the Henry Louis Gates fiasco, in which Obama admitted he did not know the details, but  proceeded to attack the Cambridge police department saying that “Cambridge police acted stupidly”, when responding to a 911 call about a alleged break-in at a residence in Cambridge.

“Politics has never been for the thin-skinned” which doesn’t explain why President Obama is so sensitive to criticism.  remember when Major Garrett, of Fox News, asked the question that most of America wanted to the answer to:  “What took you so long to be concerned about Iraq?”  And, Obama seemed quite irritated?

“American democracy has thrived because we have recognized the need for a government that, while limited, can still help us adapt to a changing world.” Then why has Obama ignored the concept of a “limited” government and, instead, presided over the greatest expansion in the federal government’s size and intrusiveness in the lives of Americans in the past 70 years?

“We have held fast to the belief that government doesn’t have all the answers, and we have cherished and fiercely defended our individual freedom.” Then how does he explain the federal government intruding into an every wider range of our personal decisions with wild abandon? Under President Obama, government now wants to direct our use of salt, the purchase of fizzy drinks, legislate how many light bulbs we can use in hot tubs and even provide advice on whether dogs should be given bones?

“We, the people, hold in our hands the power to choose our leaders, change our laws, and shape our own destiny.” Of course, that doesn’t include White House interference in open senate seat appointments or rushing through a healthcare reform bill that less than 1% of Congress had read, and which few Americans had been allowed to view because, as Nancy Pelosi said: “you have to pass the bill if we want to find out what’s in it“,  Nor does it explain White House antipathy to the Tea Party movement which is comprised of Americans who want the opportunity to shape their own destiny.

“We know that too much government can stifle competition, deprive us of choice, and burden us with debt.” Of course Obama knows this–he’s the one who’s doing it.

“In an era of iPods and Tivo, where we have more choices than ever before, government shouldn’t try to dictate your lives.” President Obama seems to be dictating all sorts of outcomes to protect his loyal supporters.   Companies bidding on government contracts, for example,  are now required to first seek approval, support and participation of unions.  Many of President Obama’s policies have delivered is resentment, class warfare, dishonest promises, and further dependency on government.

“Our government shouldn’t try to guarantee results”. Then, why has the government interfered with free markets, funding bailout after bailout? Why has the White House advanced legislation that refuses to allow foreclosures on delinquent mortgages? Why have Unions and other favorites been promised additional benefits and expanded roles in our economy at the cost of the free market?

“We cannot expect to solve our problems if all we do is tear each other down.” Perhaps President Obama could follow his own advice and not blame President Bush for Obama Administration spending sprees, not blame Rush Limbaugh for the Obama Administration’s policy mis-steps and flawed decision making, not criticize Fox News for reporting what they hear and see, not cry “racism” every time opponents have an honest policy disagreement.

“This kind of vilification and over-the-top rhetoric closes the door to the possibility of compromise.” This one is rich.   No President has ever so blindly fallowed the Saul Alinksy tactic (identify, isolate, and vilify) strategy to achieve his political goals.  Obama seems to have  found no shortage of villains to isolate and demonize when the time was right: Healthcare executives, Wall Street, Bankers, Cambridge Policemen, have all served the President well as political piñatas.

“Part of what civility requires is that we recall the simple lesson most of us learned from our parents: treat others as you would like to be treated, with courtesy and respect.” And yet Mr. Obama continues to treat all Americans as if they were mathematically impaired and unable to add up the growing number of promises that will add even more pressure on an already escalating mountain of debt.  Telling children that they can have it all, that they can and should have all the goodies they want, paid for by someone else, is not good parenting.

“If we choose only to expose ourselves to opinions and viewpoints that are in line with our own, studies suggest that we will become more polarized and set in our ways.” So why does President Obama allow the Democratic leadership in Congress to draft legislation behind closed door, excluding Republicans?

“When we don’t pay close attention to the decisions made by our leaders; when we fail to educate ourselves about the major issues of the day; when we choose not to make our voices and opinions heard, that’s when democracy breaks down.” Case in point.

Much like the Fonz, who first jumped the shark in Happy Days, with this commencement speech at the University of Michigan, President Obama may have jumped the shark with his teleprompted rhetoric, and reached the point where whatever he says from this point forward has no, absolutely no, credibility because the dichotomy between his words and his actions is so very extreme, and Obama seems oblivious to these differences.

President Obama continues to believe he can fool all of the people all of the time.   By preaching to the choir, President Obama may be able to continue to delude himself just a bit longer.

The health care bill that Congress passed recently is now being challenged by 18 states to date. The constitutionality of the bill will be a close call, with strong arguments on both sides. As former staff director of the bipartisan Commission on the Bicentennial of the U. S. Constitution, I wish here to present – as impartially as possible – both sides of the case, believing along with John Stuart Mill that “he who knows only his own side of the case knows little of that.”

White House Press Secretary Robert Gibbs reported that its counsel opined that the individual mandate requiring all to purchase health insurance is constitutional under the commerce clause. True or wishful thinking? The nub of the controversy seems this: Will the Supreme Court, citing the commerce clause, permit Congress to regulate inactivity – that is, the absence of commerce – by forcing citizens to buy a certain private-sector service or product?

But to this argument, defenders of the bill will counter that the aim of the commerce clause is not to regulate economic inactivity but to regulate health insurance and health care – an altogether different focus.

In response, opponents of the bill will argue that health insurance is a 10^th Amendment states’ right, not a federal government right. States currently regulate health insurance.

As if matters aren’t confused enough, the Supreme Court has taken polar positions on the commerce clause. In Gonzalez v. Raich (2005), it ruled that the commerce clause can be used to regulate home-grown marijuana even if only for personal use. But in U. S. v. Lopez (1995), it ruled that the commerce clause does not authorize federal law banning guns in local school districts.

The constitutionality of the individual mandate will also be tested under the 16^th Amendment, which grants Congress the broad “power to lay and collect taxes on incomes.” Opponents of the individual mandate will argue that the mandate is not a tax, but a premium to insurance companies or a fine. Defenders of the mandate will counter that this premium or fine amounts to a tax, falling under the jurisdiction of the 16^th Amendment. Also cited will be the enumerated power of the “general welfare” clause.

Opponents of the individual mandate will argue that the 16^th Amendment, if used to permit the mandate, discriminates against freely choosing citizens who don’t want health insurance. But defenders will counter that the 16^th Amendment already discriminates broadly: a graduated income tax is discriminatory. Mortgage deductions or deductions for children are discriminatory. We see a host of other discriminatory taxes whenever we file our yearly taxes.

Defenders of the individual mandate will argue that there are well established precedents for government coercion. Few people these days think that coerced social security payments or withheld Medicare premiums are unconstitutional. Car insurance is often cited, though that analogy fails: such is a mandated liability insurance for driving on roads and possibly getting into an accident – quite different from a mandated health insurance for simply living and breathing on American soil. And car insurance is a 10^th Amendment states’ right, not a federal government right.

There is another unknown that could well enter into the matter of the constitutionality of the health care bill. The Supreme Court may elect not to meddle – on such an enormous, radical scale – into the domains of two constitutional branches of government: the presidency and Congress. Marbury v. Madison established the court’s power to rule an act of Congress unconstitutional, but the court in the health care matter might opt for recommending legislative relief.

Defenders of the bill will argue that the Constitution’s supremacy clause states explicitly that federal law shall be the “supreme law of the land.” Opponents will counter that federal law cannot be the supreme law of the land if that law is found unconstitutional, as in Marbury.

If any part of the health care bill is found unconstitutional, the whole bill fails because it contains no severability clause. Consensus holds that it will take two years for the constitutional challenge to progress through the federal district court, then the appellate court, and finally the Supreme Court. In the meantime, it is possible that an injunction from the district or appellate courts could put the entire bill on hold until the injunction is lifted or the case finally resolved.

My own view is that the Supreme Court will rule the health care bill unconstitutional because never in the history of jurisprudence has the court required a citizen to buy a certain private-sector product or service and never has it defined an insurance premium or resulting fine as a tax.

Ronald L. Trowbridge, Ph. D. is a Senior Fellow at the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin. He served as chief of staff to the late U.S. Supreme Court Chief Justice Warren Burger and to the Commission on the Bicentennial of the U.S. Constitution.

After my article last week, Michael Steele and the Southern Strategy, now is time for some truth-telling about the Democratic Party.  The Democrats’ own southern strategy was far, far worse than even worst accusations aimed at the Republicans.

In his recent speech criticizing the GOP’s so-called southern strategy, RNC Chairman Michael Steele scored big points… for the other team.  Instead of criticizing his own party, he would do well to focus the public’s attention on the appalling heritage of the Democratic Party – the party of slavery and big government, socialism and the Ku Klux Klan.

“The Republican Party, on the contrary [to the Democrats], holds that this government was instituted to secure the blessings of freedom, and that slavery is an unqualified evil.  [Republicans] will oppose in all its length and breadth the modern Democratic idea that slavery is as good as freedom.”

In this classic speech, Abraham Lincoln condemned the pro-slavery policies of the Democratic Party.  The founders of our Grand Old Party knew to call Democrats ‘slave-ocrats.’  And another Republican, Robert Ingersoll, observed: “Every man that loved slavery more than liberty was a Democrat.”  One of Lincoln’s friends, Rep. Owen Lovejoy (R-IL), had this to say:

“The principle of enslaving human beings because they are inferior, is this: If a man is a cripple, trip him up; if he is old and weak, and bowed with the weight of years, strike him, for he cannot strike back; if idiotic, take advantage of him; and if a child, deceive him.  This, sir, this is the doctrine of Democrats and the doctrine of devils as well, and there is no place in the universe outside the five points of hell and the Democratic Party where the practice and prevalence of such doctrines would not be a disgrace.”

Very definitely, slavery was a southern strategy of the Democratic Party.

Operating as the terrorist wing of the Democratic Party, the KKK eradicated the GOP in much of the South after the Civil War, lynching and assassinating thousands of southern Republicans, both African-American and white.  Klansmen murdered an Arkansas Republican congressman as he campaigned for re-election.

Indeed, murder was a southern strategy of the Democratic Party.

Senator Oliver Morton, whose statue stands in the U.S. Capitol, had this to say about the Democrats’ southern strategy: “Everyone who shoots down negroes in the streets, burns negro school-houses and meeting-houses, and murders women and children by the light of their own flaming dwellings, calls himself a Democrat.  In short, the Democratic Party may be described as a common sewer and loathsome receptacle into which is emptied every element of treason, North and South, every element of inhumanity and barbarism which has dishonored the age.”

So influential was the Klan’s grip on the Democratic Party in the 20^th century that the 1924 Democratic National Convention was known as “the Klanbake.”  Gov. George Wallace, who stood in the schoolhouse door to keep out African-Americans, was a Democrat.  Gov. Orval Faubus, who tried to prevent court-ordered desegregation of Little Rock public schools, was a Democrat.  Bull Connor, whose police attacked African-Americans schoolchildren with dogs and high-pressure hoses, was the Democratic Party’s National Committeeman for Alabama.

In 1956, nineteen Democrat U.S. Senators and seventy-five Democrat U.S. Representatives (and, alas, two Republicans) signed the Southern Manifesto, criticizing the Supreme Court’s Brown v. Board of Education decision that struck down racial segregation in public schools.

Absolutely, segregation was a southern strategy of the Democratic Party.

When will DNC Chairman Tim Kaine apologize for his party’s southern strategy?  A true apology includes accepting culpability, not just expressing sorrow or regret.  To be meaningful, this apology should be from Democrats only, as it wasn’t Republicans who owned slaves and lynched African-Americans and assassinated a congressman and imposed segregation.  Those crimes were all committed by Democrats.  Even now, thanks to Senate Democrats, third in the presidential order of succession, after Joe Biden and Nancy Pelosi, is a former recruiter for the Ku Klux Klan, Robert Byrd.

Offense!  Republicans should go on offense and force the Democrats to defend their decades of depravity.  See www.grandoldpartisan.com for more information.

Drudge linked to two stories related to the Arizona immigration law recently signed into law.

Headline #1 – Illegals plan to leave AZ over law… Success! People who are here illegally are going to leave in a way that won’t cost the government money in deportation costs. How can anyone argue that people leaving, who have broken the law and are here illegally, is a bad thing. Let them all get in line and come in the legal way like others are expected to. Or are certain classes of people simply not expected to obey immigration laws?

Headline #2 – Bloomberg: ‘We are committing national suicide’…

Bloomberg says:

“This is not good for the country. I don’t agree with it,” he said. “We love immigrants here.”

Mike is half right. We do love immigrants here. Very very much. One way to show respect to those who have respected our laws and traveled here legally, in a documented way, is to be sure and not give a free pass to people who sneak in illegally. If the cost of labor goes up and jobs go to Americans instead of cheap undocumented workers, then that sounds like something the party of labor unions would be for. Or are they for something else entirely?

The sad truth is that so called Progressives are full of crap on this issue.

Illegal immigration is human trafficking. People are taken advantage of, raped and even murdered as they are trafficked, and Progressives don’t seem to care. Why is that?? Why do they defend a system that encourages human trafficking?

Perhaps Progressives enjoy the cheap labor. Perhaps they enjoy the opportunity the issue provides to call Americans racists. Maybe they just want to see a demographic shift in this country, and don’t care how many people are raped or die in the migration. Where is Human Rights Watch, or Amnesty International, or any of the myriad groups who claim as their mission to stand up for the wronged and exploited? Don’t they want to see an end to human trafficking into the US?

What the Federal Government might want to consider are ways to discourage people from sneaking in, and encourage people to come in through the front door. After all, this is not about immigration. This is about illegal immigration, and the national security risks it entails. How can anyone be against encouraging legal immigration while discouraging illegal immigration?

Here’s one thing that might help. End the Progressive drug war quagmire. It won’t solve the whole problem but it will solve a lot of it. One major reason people are streaming across the border is because Mexico has devolved into a Drug War battle zone. One valid criticism of the Arizona law, as well as Federal law,  might be that there is no provision for safely housing refugees fleeing the Drug War killing fields south of the border. America should be ashamed of creating this war while not providing for its refugees.

Ending the Drug war would also have the added benefit of cutting off some of the profitability of smuggling routes that ferry humans, be they illegal migrant workers, or Hezbollah terrorists fresh out of Venezuela. How can any administration be against that?

If in addition to ending the drug war, America also opened the spigot in terms of how many people can come here legally, that would all but eliminate the clandestine travel. No fence necessary for the most part. Safer America. Happier legal immigrants.

Win Win.

The hardcore haters of the criminal left don’t forgive – and they don’t forget.

Ever since he saved the lives of who-knows-how-many Americans by thwarting the planned fire-bombing of the 2008 Republican convention by left-wing terrorists, Brandon Darby’s been a target.

Left-wing activists have tried to destroy Darby in the court of public opinion. It’s standard operating procedure when you become an informant and turn against the terrorist left, he says.

Darby and I sat down with G. Gordon Liddy on the “G. Gordon Liddy Show.”

Darby summed up the left’s pursuit of him this way:

The Federal Bureau of Investigation, they have a program called the human source program, and I’m sure you’ve very aware of the informant program. And these are men and women, some of them have been in trouble and are trying to avoid charges but the vast majority are simply men and women like you and me who have discovered something or realized something bad, they brought information to the FBI and then in order to serve their country they decide to work undercover with the FBI on that matter and when they do so and their name becomes public, defense attorneys and the left have a tendency to completely try to destroy their character before they testify as to what they know and the information they hold.

And this is something that has happened throughout time and it’s something that’s happening right now and when that occurs those informants, for lack of a better term, usually end up changing their name, they usually end up very depressed or sad and they question what they’ve done because they’re attacked so heavily by the New York Times and by the other mainstream media establishment and that’s what I went through. I went through that.

Immediately every good thing I’d ever done in my life was taken away in the media, they tried to. I was a womanizer. I was a violent, gun-toting, womanizing FBI evil G-man who was trying to oppress the freedoms of others and…agent provocateur…I was accused of, still am being accused of being –this is the strangest thing— a joint Mossad-CIA-FBI hit man or operative having been trained at Quantico so I mean I’ve had these really bizarre attacks but that’s what they do.

They show up at places I go. They try to poster and threaten businesses, cafes that I go to for serving me and they do these kinds of things and initially it put me in a really bad funk. It was horrible, it was absolutely horrible to have somebody, to have the entire peace movement of the United States attacking me with the help of the mainstream media and ultimately threatening me.

So it was horrible, the threats were horrible, a lot of it was horrible, but thankfully I received a phone call from a man who had heard about me named Andrew Breitbart who I think is a wonderful, patriotic American doing a good job –he has a number of websites— and he called me and he really encouraged me to say my story and to speak out so that others can be helped and right at that time I received an email, because I have a public email account, and I received an email from a former informant who had changed his name, moved to another city, and he said, Mr. Darby I just want to thank you because hearing about you and the way that you’re handling this and the pride you’re showing and what you’ve done has really encouraged me to move back to my city and just to stand up to it, stand up for what I’ve done. And that meant a lot to me and so that’s one of the things that I really try to do now is advocate for other human sources and other people who’ve testified and tried to keep our country safe.

I really try to advocate for them and provide them a resource to say, hey, no matter what they do, don’t put your head down, don’t be afraid of these people. Just make sure you stay fit and strong, eat a lot of meat, have protein and muscle mass and make sure you can defend yourself. But definitely don’t put your head down and feel ashamed that you served your country regardless of what the mainstream media and what Hollywood and what defense attorneys and the ACLU says about you.

If you’d like to listen to the complete interview… [MP3 file for you to extract is at http://www.capitalresearch.org/podcast/mp3/p1272571258.mp3 or you can get it from http://feeds.radioamerica.org/loudwater/ggl/000001960_000_000000006.mp3 ]

I profiled Darby in “Radical Awakening: From America Hater to Hero.” The article appears in the April 2010 issue of Townhall magazine and was posted here at BigGovernment with Townhall’s kind permission.

Tomorrow BigGovernment will feature an op-ed by Darby, on the danger that the radical left continues to pose to America.

April 15^th – Tax Day – inspired protests across the nation.  Demonstrators rallied for smaller government, lower taxes, and liberty.  They want government off their backs.  They demanded it, in fact, and they are demanding that the Republican Party delivers it.  The majority of the conservative movement is uniting around these central tenets of conservatism, which would typically bode well for the upcoming primaries and general elections.  A handful of social conservative leaders, however, are reacting to this development with fear, and they are pushing back in ways that could cost conservatives dearly on Election Day.

While most social conservatives wisely believe the best way to protect our nation’s values is to keep the corrupting influence of government as far from our values as possible, a few social conservative leaders want to use big government to promote and enforce social values policies.  These leaders advocate for expansion of government to achieve their aims, and they are not happy with the ascendancy of limited government conservatism.  “There’s a libertarian streak in the tea party movement that concerns me as a cultural conservative,” Bryan Fischer, director of Issue Analysis for Government and Public Policy at the American Family Association, recently told Politico.  Family Research Council President Tony Perkins expressed similar concerns to Politico as well.

In this political atmosphere, groups like the Family Research Council and Focus on the Family (Focus declined a request for comment) now find themselves more likely to be laying off staff than significantly influencing the direction of the Republican Party.  In their weakened state, these groups are now threatening to take their ball and go home.  As was reported in this space a couple of weeks ago, Tony Perkins has lashed out against conservatives.  Perkins called former House Majority Leader and current FreedomWorks director Dick Armey and Americans for Tax Reform President Grover Norquist “liars” for implying that conservatives want less big government in the social arena.  Perkins has further stated that he is advising Family Research Council members to stop donating to the Republican National Committee.

The latest salvo was reported in the Washington Post – on Tax Day, no less.  Per the article, “conservative groups” [(i.e., Focus on the Family (link)] are demanding that the GOP fight in Congress to ban online poker.  They are even demanding that this effort be undertaken as an official party position.  This effort includes even scorched-earth policies, such as distributing a memo within Congress reminding everyone of the Jack Abramoff scandal…the very scandal that started the GOP’s fall from power!

Going back to the founding of modern conservatism in the 1950s and Senator Barry Goldwater’s 1964 presidential run, true conservatives have always believed in limited government principles – fiscally as well as socially.  That is why leading conservatives, including former senator and current Poker Players Alliance Chairman Alfonse D’Amato (R-NY), former House Majority Leader and current FreedomWorks chairman Dick Armey (article), Rep. Ron Paul (R-TX) (video), George Will (article #1, article #2), Walter Williams (article), Grover Norquist (letter to Congress), and Jacob Sullum (article #1, article #2, article #3), publicly oppose efforts to prohibit online poker.

Conservatives have a good deal of momentum right now. If we do nothing from now until Election Day, the GOP could take at least one house of Congress.  However, moves against online poker can only bring harm. While such moves may appease a dwindling handful of people who will vote Republican anyway, these moves would not earn the GOP one extra vote. On the other hand, moves against online poker would cost the party the votes of many poker players and enthusiasts, as well as the votes of those who believe in Internet freedom. Additionally, such actions would convince many Americans that the GOP was using limited government promises just to get elected, while planning on immediately reverting back to their pre-2006 ways once regaining control of either house of Congress.  We all saw how unpopular that was with the electorate in November 2006 and again in November 2008.

Poker players are organized and energized.  The Poker Players Alliance has over one million members, and they will vote for their liberty this November.  One wonders how many votes the GOP is willing to give away in efforts to appease the rapidly shrinking big government wing of the party.  The bigger question is, of course, how many votes true conservatives are willing to give away?

Furthermore, most Americans believe strongly in Internet freedom.  This is especially true of younger voters.  They do not want any government control of this liberating medium.  Americans have loudly objected to government controls over the Internet in China and Iran, and they will not support similar controls in the U.S.  Additionally, most Americans accept that the gaming issue has been long settled.  Commercial gaming in some form – state lotteries, Indian gaming, riverboats, casinos, etc. – is lawful in all but two states, Utah and Hawaii.  To most Americans, steps against online poker are seen as nothing but protectionist measures to maximize tax revenues from licensed gaming.

Not only are bans bad policy, but steps to ban online poker are doomed to failure.  The Internet is international and the U.S. does not control this medium.  Unless it is placed under government control like in China, any prohibition would be nothing but a feel-good (for some) measure.  The real way to control this would be to permit U.S. based sites to open.  Market forces would drive business to those sites, and they would operate under U.S. law.  Sites currently offshore would have to find ways to place themselves under the jurisdiction of U.S. courts to be able to compete in this market.  It is too bad that some are not yet interested in true solutions, preferring instead to pander to those who refuse to see that times have changed.

Unfortunately, a handful of veteran GOP lawmakers – insulated by the inside-the-Beltway culture – pay the same heed to Focus on the Family’s lobbyists that they did back in 1984.  These lawmakers have made representing (or at least claiming to represent) the American people their life’s work.  Unfortunately, a lifetime on Capitol Hill is no way to stay in touch with those whom they purport to represent.  As a result, groups from the 1980s like Focus on the Family have residual inertia on the Hill, while groups representing today’s conservatives are working just to gain traction.

In this environment, perhaps it is not surprising that some Republican lawmakers feel that going after online poker could shore up the support of the dwindling ranks of social issue statists.  However, this should alarm the rest of the movement, who rightly feel that this would do nothing but threaten to snatch defeat from the jaws of victory.  It is up to conservatives to tell their lawmakers that they demand fidelity to conservative principles.  If we want them to fight for smaller government, lower taxes, and liberty, we need to tell them.  If we do not want them wasting political capital on online poker bans, and if we do not want them fighting for smaller government fifty percent of the time and for larger government the remaining fifty percent, we need to tell them.  If we want – and demand – principled, limited government conservatism, we need to tell them, because those who want big government are telling them.

Similarly, it is time to tell Focus on the Family, the Family Research Council, and similar groups that they do not need big government to achieve their aims.  While their founders may have grown up under progressivism and still see government as a useful tool, the rest of their members surely do not.  As Tony Perkins feels it is time to stop donating to the Republican Party, perhaps it is time for us to stop donating to these organizations until they stop opposing limited government conservatism.

Focus on the Family used to use a two-pronged approach to achieving its goals. The first prong was the group’s ministry, where they used to excel.  The ministry assisted people in choosing of their own free will the path Focus recommends.  The second prong was Focus’ Congressional and state lobbying, where Focus sought laws restricting behaviors the group deemed immoral, thus using the power of the state to achieve its ends. Sadly, the fact that Focus laid off hundreds of employees since 2002, including seventy-five just last September, while doubling-down on lobbying shows a disturbing shift in the direction of the organization.  The group now prefers forcing the changes they seek through the power of the federal government over encouraging people to choose the appropriate path, and it seems they wish to push conservatism in the same direction.

Regarding the last round of layoffs, Focus on the Family spokesman Gary Schneeberger said, “Managers are meeting with their employees, praying with employees. We want to make sure that even after this process, they have a transition package and that’s not just about money, but helping them find a new job.” That is kind of Focus, but one imagines it is cold comfort to the families of the laid-off employees who know those salaries are now going to Washington lobbyists. One wonders how many would have voluntarily given up their jobs to ensure that Focus had sufficient funding to continue their all-encompassing fight against poker players.  As poker players are showing no signs of giving up, one also wonders how many years and how much donated money Focus is planning to put into this fight, and exactly how much they will continue to demand from the GOP in this matter.

It is time to move forward.  Those who advocate for big government solutions for social issues need to understand that the nation, and their cause, will be better served by embracing true conservatism.  As President Ronald Reagan famously said, “government is not the solution to our problem; government is the problem.”

Liberals love to perpetuate the stereotype that “liberal” judges rule in favor of minorities, the poor, and the little guy (Good Things), while “conservative” judges rule in favor of evil corporations, police departments, and white males (Bad Things). This parallels the stereotype that Democrat politicians help the criminally accused and the working man while Republican politicians help evil corporations and police departments.

The White House and their allies are already trying to push these long-ingrained stereotypes in preparation for this summer’s upcoming Supreme Court confirmation battle to replace Justice Stevens’ seat. Like most stereotypes, however, they are not true.

Republican Supreme Court appointees have long-stood against heinous racial discrimination. For example, President Rutherford B. Hayes, a Republican, appointed Justice John Marshall Harlan, the lone justice to dissent in the Civil Rights Cases, 109 U.S. 3 (1883) and Plessy v. Ferguson, 163 U.S. 537 (1896); these cases permitted segregation and “separate but equal” discrimination. President Herbert Hoover, a Republican, appointed Justice Owen Roberts (full disclosure: a fellow Penn and Daily Pennsylvanian alumnus), the lone Republican appointee on the Supreme Court in Korematsu v. United States, 323 U.S. 213 (1944), a case where six Democrat-appointed justices ruled that the Constitution permitted the government to forcibly herd U.S. citizens of a particular ethnicity into concentration camps. Justice Roberts’ vigorous dissent said that “convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, [solely] based on his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States” was a “clear violation of Constitutional rights.” Interestingly, the liberals preferred “assembly area” as the euphemism for these concentration or internment camps.

Even Justice Stevens, whom the media now calls a “liberal lion,” did not stand up for the “little guy” nor his First , Fourth, and Fifth Amendment rights as much as “conservative” justices like Justices Scalia and Thomas did.

In Texas v. Johnson, 491 U.S. 391 (1989), Justice Scalia joined Justice Brennan’s (now there was a liberal lion) majority opinion ruling that the First Amendment protected the disgusting act of burning the American flag as political expression. Justice Stevens separately dissented; in his view the government may imprison flag-burners for such political dissent. In Kyllo v. United States, 533 U.S. 27 (2001), Justice Scalia wrote the majority opinion, with Justice Thomas joining, ruling that the Fourth Amendment requires the police to obtain a proper warrant before searching your home with sophisticated surveillance equipment such as FLIR (Forward-Looking Infrared). Justice Stevens authored the dissent, calling Justice Scalia’s bright-line rule protecting your home’s privacy “at best trivial.” In Kelo v. City of New London, 545 U.S. 469 (2005), Justice Stevens wrote the majority opinion, with all the “liberal” justices joining him, ruling that the government may seize your private property and give it to an “evil” corporation under the guise of economic development. All the “conservative” justices dissented. Justice Thomas’ dissent noted that the corporate redevelopment scheme was “suspiciously agreeable to the Pfizer Corporation” and that the harm from Justice Stevens’ opinion would “fall disproportionately on poor communities … the least politically powerful.” Even Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which so outraged the Democrat Congress and President Obama that they passed and signed the Lilly Ledbetter Fair Pay Act of 2009, was merely an extension of United Air Lines v. Evans, 431 U.S. 553 (1977), where Justice Stevens’ majority opinion rejected a female flight attendant’s Title VII gender-discrimination claim because she did not sue within the statute of limitations. Justice Stevens’ opinion referred to the discrimination Ms. Evans suffered as “merely an unfortunate event in history which has no present legal consequences.”

None of this is to criticize Justice Stevens. Instead, the above examples are but a few which show that the stereotypes of “liberal” judges and “conservative” judges are nonsense. President Obama should seek Supreme Court nominees based not on these inaccurate stereotypes but rather on whether they are experienced, qualified, and understand that courts interpret the laws that legislators write, not make preferential political policy. If, however, President Obama insists on seeking nominees based on whether they stand up for the little guy, minorities, and their constitutional rights … well, as the above examples show, he would do very well to nominate someone like Justice Scalia or Justice Thomas.

David Weigel, at The Washington Post, asked me to comment on Michael Steele’s view of  the so-called Southern Strategy.

Speaking at DePaul University on April 20, RNC Chairman Michael Steele urged Republican leaders to work with the Tea Parties.  He has the right approach, to which I would add the fact, per my article on BigGovernment.com, that The Republican Party began as a Tea Party Movement.

Steele then went on to say:

“We have lost sight of the historic, integral link between the party and African-Americans.  This party was co-founded by blacks, among them Frederick Douglass.  The Republican Party had a hand in forming the NAACP, and yet we have mistreated that relationship.  People don’t walk away from parties.  Their parties walk away from them.  For the last 40-plus years we had a ‘Southern Strategy’ that alienated many minority voters by focusing on the white male vote in the South.  Well, guess what happened in 1992, folks, ‘Bubba’ went back home to the Democratic Party and voted for Bill Clinton.”

Chairman Steele makes an interesting point, but he is accepting as true the Democrat version of events.  The theme of Back to Basics for the Republican Party is that celebrating our party’s heritage is not just for minority outreach but for all Republicans to appreciate that the GOP has been a great force for good ever since being founded in 1854 to oppose the Democrats’ pro-slavery, anti-freedom agenda.  I drew on that record of achievement in writing the historical information on the RNC website, also posted as Heroes and Heroics.

Chairman Steele’s analysis of the so-called “southern strategy” is a bit too simplistic and could use some historical context.  Since the end of Reconstruction the GOP scarcely existed in most of the South until the 1950s.  In fact, in 1952 the Republican Party was so weak there that Dwight Eisenhower had to rely on “Veterans for Eisenhower” organizations to conduct much of his campaign in the region.

So firm was the Democrat grip on the white southern vote that prior to Richard Nixon’s 1960 campaign, no Republican presidential candidate had ever done much campaigning in the South.  That year he broke new ground by deciding to campaign in every state.  Prior to legislative advances of the civil rights movement — initiated by the GOP’s 1957 and 1960 Civil Rights Acts — few African-Americans could vote in the Democrat-controlled South.  As a result, Nixon’s campaigning in southern states was perforce directed toward the people who could vote there, mostly the whites.

Regarding his decision to campaign in the South as some kind of cynical ploy is to ignore Nixon’s civil rights achievements while serving as Eisenhower’s vice president.  He was instrumental in breaking the Democrat filibuster against the 1957 Civil Rights Act and called for racial integration of public schools long before John Kennedy or Lyndon Johnson did.

As I often say in my speeches, “The more we Republicans know about the history of our party, the more the Democrats will worry about the future of theirs.”  See www.grandoldpartisan.com for more information.

From CBS 2 in Chicago:

obama

The defense team for deposed Gov. Rod Blagojevich has moved to subpoena President Barack Obama to testify at Blagojevich’s corruption trial.

The motion filed Thursday says Obama was interviewed for two hours by prosecutors and FBI agents regarding the Blagojevich case, and the defense filed a motion asking for all transcripts, notes and reports from that interview. But the defense never received the documents, the motion said.

The motion also claims that prosecutors say Blagojevich met a labor union official whom he believed to be in contact with President Obama, and told the official he would appoint a certain candidate to the vacant Senate seat. In exchange, Blagojevich expected to be named secretary of Health and Human Services, the motion says prosecutors claim.

But Obama has said he was “confident that no representatives of mine would have any part of any deals related to this seat,” the motion says.

“President Obama has direct knowledge to allegations made in the indictment. In addition, President Obama’s public statements contradict other witness statements, specifically those made by labor union official and Senate Candidate B,” the motion said.

Continue reading here.

From the Associated Press:

A federal appeals court on Wednesday handed the government a victory by temporarily blocking a judge’s finding that Congress was wrong to halt federal funding to the activist group ACORN.

The 2nd U.S. Circuit Court of Appeals in Manhattan also agreed to expedite the government’s appeal of U.S. District Judge Nina Gershon’s rulings that the funding cutoff was unconstitutional. Oral arguments were likely to occur before July.

The appeals court’s one-paragraph decision to freeze Gershon’s two rulings that found Congress acted unconstitutionally will remain in place until the 2nd Circuit rules on the merits of the government’s appeal. It acted a day after hearing arguments.

The government had argued that it was necessary to block the Brooklyn judge’s ruling to ensure that federal agencies weren’t required to commit funds that haven’t been appropriated by Congress. It said Congress did the same as several states and localities when it tried to protect federal funds by stopping certain federal agencies from pledging money to ACORN and its affiliates because of evidence of systemic mismanagement by the group.

Attorney Jules Lobel, of the Center for Constitutional Rights, represented ACORN and said he was considering taking the unusual step of appealing the temporary order to the U.S. Supreme Court. He said government lawyers needed to show the appeals court that it would suffer irreparable harm to block Gershon’s rulings.

“They never even attempted to show that,” he said.

Lobel, who argued against the stay before a three-judge panel of the 2nd Circuit on Tuesday, said the decision was another blow to ACORN, which has suffered through a national scandal and been driven to near ruin after three employees were caught on video apparently advising a couple posing as a prostitute and her boyfriend to lie about her profession and launder her earnings.

“It further drives the nail into ACORN,” he said. “It just delays crawling out of the hole. Justice delayed here is justice denied.”

Continue reading here.

From the Associated Press:

A federal appeals court on Wednesday handed the government a victory by temporarily blocking a judge’s finding that Congress was wrong to halt federal funding to the activist group ACORN.

The 2nd U.S. Circuit Court of Appeals in Manhattan also agreed to expedite the government’s appeal of U.S. District Judge Nina Gershon’s rulings that the funding cutoff was unconstitutional. Oral arguments were likely to occur before July.

The appeals court’s one-paragraph decision to freeze Gershon’s two rulings that found Congress acted unconstitutionally will remain in place until the 2nd Circuit rules on the merits of the government’s appeal. It acted a day after hearing arguments.

The government had argued that it was necessary to block the Brooklyn judge’s ruling to ensure that federal agencies weren’t required to commit funds that haven’t been appropriated by Congress. It said Congress did the same as several states and localities when it tried to protect federal funds by stopping certain federal agencies from pledging money to ACORN and its affiliates because of evidence of systemic mismanagement by the group.

Attorney Jules Lobel, of the Center for Constitutional Rights, represented ACORN and said he was considering taking the unusual step of appealing the temporary order to the U.S. Supreme Court. He said government lawyers needed to show the appeals court that it would suffer irreparable harm to block Gershon’s rulings.

“They never even attempted to show that,” he said.

Lobel, who argued against the stay before a three-judge panel of the 2nd Circuit on Tuesday, said the decision was another blow to ACORN, which has suffered through a national scandal and been driven to near ruin after three employees were caught on video apparently advising a couple posing as a prostitute and her boyfriend to lie about her profession and launder her earnings.

“It further drives the nail into ACORN,” he said. “It just delays crawling out of the hole. Justice delayed here is justice denied.”

Continue reading here.

Alexis de Tocqueville traveled to the United States of America in 1831 on assignment from the French government to study the American prison system.  One result of those travels was a rather prophetic study of American society, “Democracy in America.” The study consists of two volumes.  The first considers American political society, and the second considers American civil society.  The entire study is a must read, but my focus is on one of the last chapters.

What Sort of Despotism Democratic Nations Have to Fear

It would seem that, if despotism were to be established amongst the democratic nations of our days, it might assume a different character; it would be more extensive and more mild; it would degrade men without tormenting them.

In essence, the sort of despotism we might find in America today would not be of the sort found in ancient Rome or imperial Russia.  The tyrants exercising that sort of despotism were confined to tyranny upon the ruling classes.  The vast majority of people would have been unaffected by the actions of one tyrant to another because they were not a source of power.  Democracies derive their power from the people, which means despotism cannot exist openly, but that it also affects more people.  It becomes “soft despotism,” operating both in the name, and at the expense, of the people.

For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritance: what remains, but to spare them all the care of thinking and all the trouble of living?

If that statement does not describe the progressive-statist agenda, I do not know what does.  Ever since the progressive movement began its push for social engineering funded by income taxation, government has extended its tendrils into every aspect of our lives.  Bit by bit, the administrative state has expanded its grasp over the last century.  And all of this has culminated in socialized medicine: government regulation over our very lives.

An association for political, commercial, or manufacturing purposes, or even for those of science and literature, is a powerful and enlightened member of the community, which cannot be disposed of at pleasure, or oppressed without remonstrance; and which, by defending its own rights against the encroachments of the government, saves the common liberties of the country.

This does not mean organizations like ACORN, Project Vote or the Secretary of State Project.  These groups work for the expansion of government at the expense of liberty by promising false prosperity to the less fortunate in exchange for a vote. Instead, think Tea Party or Citizens United (2010).  If anything, organizations that align themselves too closely to government should be viewed with extreme skepticism.  Think “too big to fail” or SEIU.

It is therefore most especially in the present democratic times, that the true friends of the liberty and the greatness of man ought constantly to be on the alert, to prevent the power of government from lightly sacrificing the private rights of individuals to the general executions of its designs.

We were caught sleeping at the wheel.  During President George W. Bush’s administration, the rhetoric of the progressives espoused the ideas presented in the previous quote.  But rhetoric is merely the art of communication, and is separate from the critical thinking involved with logic.  Many Americans, lulled to sleep by the “soft despotism” of the administrative state, assumed they were acting in the interest of liberty by electing the likes of President Barack H. Obama, and believed “transformative democracy” was a way to re-establish alleged liberties lost.

It is ever to be feared that revolutionary tendencies, becoming more gentle and more regular, without entirely disappearing from society, will be gradually transformed into habits of subjection to the administrative authority of the government.

Our rights exist outside of the government, or rather, the government is not the guarantor of our rights.  As I have argued before, the right to free speech is not guaranteed by the 1st Amendment, but rather, the 1st Amendment precludes government intervention in our pre-existing right to free speech.  The 9th Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (emphasis added).  The message of “transformative democracy” championed by progressives represents the gentle revolution of subjugation for which de Tocqueville forewarns.

I have sought to point out the dangers to which the principle of equality exposes the independence of man, because I firmly believe that these dangers are the most formidable, as well as the least foreseen, of all those which futurity holds in store; but I do not think they are insurmountable.

And they are not!

Americans are re-awakening to the promises of liberty established and promoted from the founding of our nation.

I close with the final sentence of “Democracy in America”:

The nations of our time cannot prevent the conditions of men from becoming equal; but it depends upon themselves whether the principle of equality is to lead them to servitude or freedom, to knowledge or barbarism, to prosperity or wretchedness.

On Friday April 9, 2010, GOP official Allee Bautsch and her boyfriend Joe Brown attended a Republican dinner at Brennan’s restaurant in New Orleans. When they left this event the young Republicans were followed from the restaurant by a group of five white men who hurled insults at them calling Allee a “little blond bitch” and calling Joe a “f**king f*ggot.” They savagely beat and stomped on the young Republican couple just blocks from the restaurant.

This photo shows the look of horror on Allee’s face after she was stomped on by the thugs.
Via The Hayride:

Allee Bautsch suffered a broken leg from the beatdown outside to the SRLC dinner at Brennan’s Restaurant in New Orleans. She had her leg operated on over the weekend and it will take her months to recover. Her boyfriend Joe Brown suffered a broken nose, a broken jaw, and a concussion. They were attacked after leaving the Southern Republican Leadership Conference dinner at Brennan’s Restaurant.
(Photo from Jindal’s Facebook Page via The Hayride)

Today Gov. Bobby Jindal told reporters he wasn’t going to comment further on the investigation that left his chief fundraiser and her boyfriend injured. If Jindal wanted to improve his national profile he would hold a press conference and ask the public for their assistance to help solve this crime. But, so far he has remained mostly silent after his chief fundraiser was brutally beaten in the streets. He should rethink this.

The Hayride has much more information on the events that night.

Allee Bautsch’s mother told reporters on Saturday that her daughter was beaten by leftist Jindal protesters.

Last week, in CFPA Czar or Fox in the Hen House? You Decide, I brought you more details about the people and structure of the ACORN-esque Center for Responsible Lending (CRL) and the Center for Community Self Help (CCSH) as part of a series of pieces we’ve been writing about the financial crisis and the proposed Consumer Financial Protection Agency (CFPA).

The importance of the pieces in this series cannot be understated.  As Congress faces down a massive power-grabbing partisan financial reform bill this week, it seems to have lost sight of many of the causes of the financial crisis in the first place.  While we hear about the exemptions in the bill of institutions like Fannie Mae and Freddie Mac, the stories we’ve been covering on CRL and CCSH further illustrate the dangers of unchecked entities and a government with too much intervention and far too much power.

At the peak of the subprime mortgage boom and the subsequent financial crisis, primary donors to CRL and CCSH basked in billions of dollars in pure profit, thanks in large part to that very intervention and power.

Next, we’re going to introduce you to the questionable lobbying activities of this complex organization.  But before we do, let’s review a few pertinent details from our previous posts about this organization:

• John Paulson is the largest single donor to the Center for Responsible Lending.  Paulson owns one of the world’s largest hedge funds, and most recently, the SEC has alleged “that Paulson & Co. paid Goldman Sachs to structure a transaction in which Paulson & Co. could take short positions against mortgage securities chosen by Paulson & Co. based on a belief that the securities would experience credit events.”
• Herb and Marion Sandler are the second largest donors to CRL, and together with Paulson appear to comprise the majority of the organization’s funding.  The couple owned GoldenWest Financial/World Savings bank, before selling it for over $2 billion to Wachovia, which tanked shortly thereafter
• Eric Stein, who once worked for Fannie Mae (an institution currently exempt from regulation in the financial reform bill), was also the longtime leader of CRL and Sr. Vice President of CCSH.  Today, Stein sits in Obama’s Treasury Department in charge of crafting the current financial reform legislation and the new Consumer Financial Protection Agency (CFPA).

Now, onto the lobbying.

A complaint that was filed with the House, Senate, and the IRS alleges that CRL, CCSH, and its vast network of non-profit and for-profit companies may have committed serious violations of the Lobbying Disclosure Act (LDA) and the Honest Leadership in Open Government Act (HLOGA).  The complaint was filed in the Fall of 2009 by the Consumers Rights League.

(Full disclosure folks, at the time the President of the Consumers Rights League was Mike Flynn. Yep, that’s OUR Mike Flynn, whose work there pre-dates his work at Big Government.)

As 501(c)(3) organizations, CRL and CCSH are required to adhere to the Internal Revenue Service’s strict limits on lobbying activities.  The complaint calls for the IRS and Congress (and possibly other relevant agencies) to investigate whether CRL and CCSH may have violated these laws.  Specifically, the complaint states that CRL and CCSH may have committed these violations:

• by improperly aggregating and calculating the limits on their lobbying activities;
• by exceeding the applicable lobbying limits under their Section 501(h) election;
• by failing to file reports that list their campaign contributions and other payments, as well as to certify their compliance with Congressional lobbying and ethics rules
• by abusing the status of CRL as a supporting organization by using it to receive the great bulk of their combined support from two donors;
• by possibly allowing their lobbying and advocacy activities to be improperly influenced and providing private benefits that inured to the benefit of their major donors

Download the Complaint

In researching some of the complaint’s allegations, there do appear to be quite a few valid concerns that warrant the investigations being requested.

First, there are the lobbying activities.

Let’s look in general at the lobbying.  How much of the organization’s time and resources have been spent on lobbying activities, and have those been reported properly and accurately?  In reviewing some of the publicly available lobbying records, it would appear evident that the amount of lobbying activity is really quite extensive for a non-profit organization.  While the group’s initial lobbying history started out modestly with some focus on charter schools, there has been an enormous spike in lobbying expenses over the last several years – especially in 2008 – that appears it could possibly push the organization’s activities outside the limits.

So, what happened just before 2008?

In late October of 2007, CRL received a $15 million donation from John Paulson.  Shortly thereafter, lobbying efforts increased heavily and then shifted almost entirely to Banking/Affordable Housing, with special attention moving over to the mortgage cramdown legislation.  Similar lobbying behavior can also be observed from Self-Help Credit Union, a CRL/CCSH affiliate.

Further, with so much lobbying activity and so many lobbyists on their roster, it’s difficult to know who the real beneficiaries are of all this lobbying.  Is it CRL/CCSH?  Or is it the donors?  In actuality, donors like Paulson stand to benefit a great deal from such legislation.  Because as the values of mortgage-backed securities go down in light of the uncertainty that cramdown would create in the market, the profits for those hedge fund managers betting against them goes up.  And for donors like the Sandlers, who have advocated for affordable housing legislation for years, while at the same time are known for creating the secondary market for subprime and Alt-A mortgages, mandating secondary loans and subsidizing that pool of customers obviously creates opportunity and profit for their investments, like World Savings Bank.

So, why would a 501(c)(3) need to hire so many lobbyists?  It appears that a total of about nine outside lobbying firms registered as lobbyists for CCSH organizations since 2003 – some under “Center for Responsible Lending“, some under “Self-Help Credit Union“, and others under “Self-Help”.  Many of these individuals are regulars on the lobbying scene and are essentially full-time.  And at these levels, it would appear quite possible that the activity alone exceeds the allowable limit.

As the HLOGA law requires, organizations must identify major donors who help formulate their lobbying strategy.  But in a 2007 BusinessWeek article, an attorney for one of the donors stated, “there are loopholes in the law, and people find ways to exploit them,” apparently insinuating CRL/CCSH could avoid the disclosure requirement.

The complaint requests that all of these activities be investigated.

Next, there are the donors.

As the complaint explains:

“According to CRL’s IRS Form 990 for 2007, its total revenue was $18.8 million and its total expenses were $16.7 million.

Although the names of its donors are masked on the public version of its IRS Form 990, Schedule B (“Schedule of Contributors”) for 2007, it shows that contributions of $15 million and $6 million were received from two sources, for a total of $21 million that year. See Attachment 3.

The $15 million amount, of course, matches the contribution by Paulson & Co. reported in the BusinessWeek article.

Although the identity of the $6 million donor in 2007 is not publicly disclosed by CRL in the public version of its Schedule B for its IRS Form 990 for 2007, the IRS Form 990 for the Sandler Foundation for its fiscal year ended June 30, 2007 indicates a contribution of $6 million to CRL.  See Attachment 4 (which also shows that the Sandler Foundation’s total assets increased from approximately $625 million to $1.5 billion during its fiscal year ended June 30, 2007).”

As is pointed out in the complaint, registrants are required by law to report the names of their major donors who help formulate their lobbying strategy.  While the organization may have failed to report these names, it was relatively easy to track back the donations to their donors using available press publications and tax filings.  Further, given the high profile and the nature of these donors’ businesses, the lobbying activity that developed around 2008 seems at the very least suspicious and warrants a second look from investigators.

And then there’s the issue of the organization’s former President/CEO.

We covered this in detail in CFPA Czar or Fox in the Hen House? You Decide.  But with financial reform up for more votes this week, this is an ever relevant topic.

For years, this organization has been run by Eric Stein.  This is the same individual who is now the Deputy Assistant Secretary for Consumer Protection in the Dept. of Treasury.  Stein is the author of much of the financial reform legislation and was hired on by Obama specifically to create the Consumer Financial Protection Agency.  He also spent some years working for Fannie Mae, an institution that has somehow ended up exempt in this bill.

In light of the recent (and conveniently timed – sort of like IndyMac?) news of Goldman Sachs, in light of the failures of the already existing government agencies like SEC, OTS, Treasury, the Federal Reserve and others, is the CFPA really going to solve all the country’s financial ills?  Or will it merely be yet another power grab – and handed over to a “regulator” that already seems quite used to turning a blind eye.

President Obama may be fond of taunting those who question this bill with accusations of “driving your friends and your neighbors out of their homes”, but I’m curious to know  - who’s doing the “driving out” here?

We’re still not done covering this, so as usual, stay tuned.  And if you haven’t been following, catch up on all the others in this series:

The Center for LESS Responsible Lending, 11/11/2009

The Little Fed Report that Could…and Did Create a Housing Bubble, 3/10

What is the Center for Responsible Lending?, 3/12

Hedge Fund ‘Golden Boys’ Bet on Bailouts; Win Big, 4/2

Death by Senator: As Financial Reform Looms, We Revisit IndyMac, 4/5

Hedge Fund Managers Invest in Congress, 4/13

CFPA Czar or Fox in the Hen House? You Decide., 4/16

Goldman’s Fall From Grace, 4/17

After more than a decade of sports with no score kept as not to hurt the feelings of the defeated, the banning of Tag and Dodgeball during recess, “Do Something!” state legislatures are now poised to outlaw bullying because young people are too intimidated by Facebook posts and mean text messages.

In the uproar around the suicides of Ms. Prince, 15, and an 11-year-old boy subjected to harassment in nearby Springfield last year, the Massachusetts legislature stepped up work on an anti-bullying law that is now near passage. The law would require school staff members to report suspected incidents and principals to investigate them. It would also demand that schools teach about the dangers of bullying. Forty-one other states have anti-bullying laws of varying strength.

While what happened to Phoebe Prince was truly tragic, what are today’s youth going to do tomorrow should they be in charge during an international crisis with a taunting, foreign enemy? I’m sorry but dealing with bullies is a part of childhood that develops character. How you deal with it determines what kind of person you’ll be.

While in second grade and attending the Blessed Sacrament School in Cambridge, Massachusetts, I was the target of the school bully (whose name I won’t mention because he may be a nice person now).

I remember it going around one day that he was going to beat me up after school. It was a terrifying experience as the threat loomed.

But instead of just succumbing to my fears and deciding to end it all, I began to use my brain.

I tried to plan an escape route, determining which exit to use vice how much time I’d have should the bully find out and become even angrier that I was going to make his life harder. I planned an out-of-the-way route home. Asking a nun to walk me home was out of the question, so being stealth was key. Eventually I was caught, the beating was not as bad as advertised, and after that, the bully moved on.

As the Circle of Life would have it, the bully usually keeps on the activity until he (or she) messes with the wrong person: usually the silent type, and the ass whuppin’ goes the other way. The bully now has to live with the fact that all the people he victimized are now laughing at him. That’s how we survived, but because we now have helicopter parents who hover everywhere but in their own homes, when their children are harassed and remain defenseless because they’ve not been taught how to deal with harassment, laws have to be enacted to protect (thus shield) them from an aspect of growing up necessary to their development.

Bullying is also handled in a non-equitable fashion.

If the bully comes from a poor family, punishments are metted out differently than if the bully is the son or daughter of the mayor. How would anti-bullying laws be enforced if the kid is from wealth and prominence compared to a kid from a poor, broken home? There will be disparity, but that’s what you get when a meddlesome, attention-starved state legislature decides it has to do something to respond to something they saw on the local news.

And let’s not forget, we do have parents who are quite resistant to the absurdity that their little darlings are even capable of wrongdoing. While living in California, I talked to many a teacher who wouldn’t report a bad child because, unlike when we were growing up and a teacher’s complaint against us was taken by our parents as gospel, today’s parents get in a teacher’s face with “How do you know it was my child?” Yet, the Massachusetts Legislature expects teachers to become more proactive, busting kids who pick on others.

Life has a way of fixing itself. Here’s one example and I’m speculating.

Let’s say we have a kid whose last name is Weiner. Tell me that’s not a name that received undue attention in school. That kid may even have been bullied.

Today, that kid is now a congressman and the very kid who bullied him earlier, now has to either deal with his personal problems or grovel while asking that congressman for assistance.

But as we’re talking about the offspring of the instant gratification generation, any taunting is agonizing if it can’t be turned off this afternoon. Abuse now enters the home via the Internet and we need counselors to deprive children the opportunity to develop the thick skin necessary to compete in a world of bullies.

In Massachusetts and forty-one other states, the bullies have won, all the other kids will lose, and this pussified generation will be ill-equipped to deal with real bullies armed with more than bad names.

After more than a decade of sports with no score kept as not to hurt the feelings of the defeated, the banning of Tag and Dodgeball during recess, “Do Something!” state legislatures are now poised to outlaw bullying because young people are too intimidated by Facebook posts and mean text messages.

In the uproar around the suicides of Ms. Prince, 15, and an 11-year-old boy subjected to harassment in nearby Springfield last year, the Massachusetts legislature stepped up work on an anti-bullying law that is now near passage. The law would require school staff members to report suspected incidents and principals to investigate them. It would also demand that schools teach about the dangers of bullying. Forty-one other states have anti-bullying laws of varying strength.

While what happened to Phoebe Prince was truly tragic, what are today’s youth going to do tomorrow should they be in charge during an international crisis with a taunting, foreign enemy? I’m sorry but dealing with bullies is a part of childhood that develops character. How you deal with it determines what kind of person you’ll be.

While in second grade and attending the Blessed Sacrament School in Cambridge, Massachusetts, I was the target of the school bully (whose name I won’t mention because he may be a nice person now).

I remember it going around one day that he was going to beat me up after school. It was a terrifying experience as the threat loomed.

But instead of just succumbing to my fears and deciding to end it all, I began to use my brain.

I tried to plan an escape route, determining which exit to use vice how much time I’d have should the bully find out and become even angrier that I was going to make his life harder. I planned an out-of-the-way route home. Asking a nun to walk me home was out of the question, so being stealth was key. Eventually I was caught, the beating was not as bad as advertised, and after that, the bully moved on.

As the Circle of Life would have it, the bully usually keeps on the activity until he (or she) messes with the wrong person: usually the silent type, and the ass whuppin’ goes the other way. The bully now has to live with the fact that all the people he victimized are now laughing at him. That’s how we survived, but because we now have helicopter parents who hover everywhere but in their own homes, when their children are harassed and remain defenseless because they’ve not been taught how to deal with harassment, laws have to be enacted to protect (thus shield) them from an aspect of growing up necessary to their development.

Bullying is also handled in a non-equitable fashion.

If the bully comes from a poor family, punishments are metted out differently than if the bully is the son or daughter of the mayor. How would anti-bullying laws be enforced if the kid is from wealth and prominence compared to a kid from a poor, broken home? There will be disparity, but that’s what you get when a meddlesome, attention-starved state legislature decides it has to do something to respond to something they saw on the local news.

And let’s not forget, we do have parents who are quite resistant to the absurdity that their little darlings are even capable of wrongdoing. While living in California, I talked to many a teacher who wouldn’t report a bad child because, unlike when we were growing up and a teacher’s complaint against us was taken by our parents as gospel, today’s parents get in a teacher’s face with “How do you know it was my child?” Yet, the Massachusetts Legislature expects teachers to become more proactive, busting kids who pick on others.

Life has a way of fixing itself. Here’s one example and I’m speculating.

Let’s say we have a kid whose last name is Weiner. Tell me that’s not a name that received undue attention in school. That kid may even have been bullied.

Today, that kid is now a congressman and the very kid who bullied him earlier, now has to either deal with his personal problems or grovel while asking that congressman for assistance.

But as we’re talking about the offspring of the instant gratification generation, any taunting is agonizing if it can’t be turned off this afternoon. Abuse now enters the home via the Internet and we need counselors to deprive children the opportunity to develop the thick skin necessary to compete in a world of bullies.

In Massachusetts and forty-one other states, the bullies have won, all the other kids will lose, and this pussified generation will be ill-equipped to deal with real bullies armed with more than bad names.

After more than a decade of sports with no score kept as not to hurt the feelings of the defeated, the banning of Tag and Dodgeball during recess, “Do Something!” state legislatures are now poised to outlaw bullying because young people are too intimidated by Facebook posts and mean text messages.

In the uproar around the suicides of Ms. Prince, 15, and an 11-year-old boy subjected to harassment in nearby Springfield last year, the Massachusetts legislature stepped up work on an anti-bullying law that is now near passage. The law would require school staff members to report suspected incidents and principals to investigate them. It would also demand that schools teach about the dangers of bullying. Forty-one other states have anti-bullying laws of varying strength.

While what happened to Phoebe Prince was truly tragic, what are today’s youth going to do tomorrow should they be in charge during an international crisis with a taunting, foreign enemy? I’m sorry but dealing with bullies is a part of childhood that develops character. How you deal with it determines what kind of person you’ll be.

While in second grade and attending the Blessed Sacrament School in Cambridge, Massachusetts, I was the target of the school bully (whose name I won’t mention because he may be a nice person now).

I remember it going around one day that he was going to beat me up after school. It was a terrifying experience as the threat loomed.

But instead of just succumbing to my fears and deciding to end it all, I began to use my brain.

I tried to plan an escape route, determining which exit to use vice how much time I’d have should the bully find out and become even angrier that I was going to make his life harder. I planned an out-of-the-way route home. Asking a nun to walk me home was out of the question, so being stealth was key. Eventually I was caught, the beating was not as bad as advertised, and after that, the bully moved on.

As the Circle of Life would have it, the bully usually keeps on the activity until he (or she) messes with the wrong person: usually the silent type, and the ass whuppin’ goes the other way. The bully now has to live with the fact that all the people he victimized are now laughing at him. That’s how we survived, but because we now have helicopter parents who hover everywhere but in their own homes, when their children are harassed and remain defenseless because they’ve not been taught how to deal with harassment, laws have to be enacted to protect (thus shield) them from an aspect of growing up necessary to their development.

Bullying is also handled in a non-equitable fashion.

If the bully comes from a poor family, punishments are metted out differently than if the bully is the son or daughter of the mayor. How would anti-bullying laws be enforced if the kid is from wealth and prominence compared to a kid from a poor, broken home? There will be disparity, but that’s what you get when a meddlesome, attention-starved state legislature decides it has to do something to respond to something they saw on the local news.

And let’s not forget, we do have parents who are quite resistant to the absurdity that their little darlings are even capable of wrongdoing. While living in California, I talked to many a teacher who wouldn’t report a bad child because, unlike when we were growing up and a teacher’s complaint against us was taken by our parents as gospel, today’s parents get in a teacher’s face with “How do you know it was my child?” Yet, the Massachusetts Legislature expects teachers to become more proactive, busting kids who pick on others.

Life has a way of fixing itself. Here’s one example and I’m speculating.

Let’s say we have a kid whose last name is Weiner. Tell me that’s not a name that received undue attention in school. That kid may even have been bullied.

Today, that kid is now a congressman and the very kid who bullied him earlier, now has to either deal with his personal problems or grovel while asking that congressman for assistance.

But as we’re talking about the offspring of the instant gratification generation, any taunting is agonizing if it can’t be turned off this afternoon. Abuse now enters the home via the Internet and we need counselors to deprive children the opportunity to develop the thick skin necessary to compete in a world of bullies.

In Massachusetts and forty-one other states, the bullies have won, all the other kids will lose, and this pussified generation will be ill-equipped to deal with real bullies armed with more than bad names.

Last week, the Securities and Exchange Commission brought civil fraud charges against Wall Street investment bank Goldman Sachs. The charges arise from the bank marketing collateralized debt obligations (CDOs) to customers without disclosing that a major hedge fund investor, and Goldman client, John Paulson had made a series of bets against the securities. (The SEC did not announce any charges against Mr. Paulson.)

The announcement of the charges comes at a volatile time for the financial industry. With the Senate set to take up its version of a sweeping revamp of the financial services industry, the allegations against Goldman are certain to have a prominent place in the debate.

Appearing this afternoon on Chicago’s WLS radio station, Illinois Senator Dick Durbin seemed downright excited about the allegations:

The timing was perfect. We’re about to take up the financial regulatory reform bill. The banks are saying Oh, this is totally unnecessary. We have everything worked out. Now we find out the Securities and Exchange Commission has stepped up and charged Goldman Sachs, one of the biggest, with involvement in some trading that really turns out to be very suspicious.

Ah yes, the “timing was perfect.”

Odd how that happens in DC, from time to time. According to the New York Post, Barclay’s banking analyst Roger Freeman came out and stated what is on a lot of Wall Street minds this weekend:

Barclays banking analyst Roger Freeman comes right out and blasts the SEC effort as “a well-timed, and perhaps not coincidental, effort to sway some on-the-fence Republicans” to get tough on financial reform.

“Targeting GS, given the flurry of anti-Wall Street press that has centered around that firm, offers the publicity that the administration needs at this critical juncture,” Freeman says in a note to clients today.

Big Government has detailed many of the problems with the current financial “reform” proposal. (See here, here and here, for example.) As the bill’s details become known and understood, even moderate GOP Senators like Scott Brown and Susan Collins had recently announced their opposition.

Of course, that opposition was announced before the current allegations were announced.

Indeed, the “timing was perfect.”

Update: Erick Erickson at Redstate has more on the suspicious timing of the charges. Within minutes of the announcement of the charge, all parts of the Democrat Industrial Complex were able to move quickly to capitalize on the allegations. The New York Times and Organizing for America, respectively had full coverage of the charges and a sophisticated e-mail action alert based on them. Giving the benefit of the doubt that the independent agency hadn’t tipped off these folks about the charges, everyone involved should get little plaques for most productive workers of the year!

Geoffrey R. Stone, professor of law at the University of Chicago and editor of The Supreme Court Review, has a pertinent suggestion: the retirement of Judge Stevens and the impending nomination of his successor should spark “a frank discussion” of “the proper role of judges in our constitutional system” [“Our Fill-in-the Blank Constitution,” The New York Times, April 14]. True to his promise of frankness, he charges “conservative” judges with advancing “disingenuous descriptions of what judges—liberal or conservative—actually do.”

Such men as Roberts and Scalia claim to seek the original meaning of the framers, to serve as umpires who call the plays as they see them, according to the rules. But, Professor Stone charges, they do no such thing.

Such Constitutional phrases as freedom of speech, due process of law, free exercise of religion, cruel and unusual punishment do not define themselves, he remarks; “they did not have clear meanings even to the people who drafted them.” Rather, the framers left such definition “to future generations.”

This conservatives all too eagerly have done. “Fueled by their own political and ideological convictions, they make value judgments, often in an often aggressively activist manner that goes well beyond anything the framers themselves envisioned.” The list of horrors proves long: examples include First Amendment protection for advertisers; prohibition of the regulation of guns; the right of the Boy Scouts to exclude gay scoutmasters. Meanwhile, liberal judges have upheld Madisonian principle by striking down laws prohibiting interracial marriage, forbidding forced sterilization, protecting the rights of political dissenters and of minority religious denomination, and similarly handsome things. Bad conservatives. Good liberals.

Conservatives don’t protect the people. They protect “corporations, business interests, the wealthy and other powerful interests in society.” Driven by “their own political and ideological convictions,” conservatives “employ judicial review to protect the powerful rather than the powerless,” pretending to construe the Constitution as written but in fact injuring those “who are unlikely to have their interests fully and fairly considered by the majority” of their fellow citizens.

What conservatives lack and what liberals have, Professor Stone maintains—following President Obama—is empathy. Empathy, fellow-feeling, “helps the judges understand the aspirations”—don’t forget, intentions and meaning are inscrutable—“of the framers.” Not only that, empathy “helps judges understand the effects of the law on the real world,” on “the lives of real people”—as distinguished, presumably, from such surreal people as corporate executives, gun owners, and Boy Scouts

Leaving aside Professor Stone’s rather odd equation of the rich and the powerful with the majority of people in this or any other society—are not property rights, for example, designed in part to protect the few who are rich from the many of us who are not?—two problems arise with this “frank” discussion of judicial deportment.

First, to say that such formulations as free speech, equal protection, and due process had no clear meanings to the framers, that they are “blanks” to be “filled in” by “future generations” of judges, ignores the several centuries of legal precedent and philosophic reflection that preceded the year 1787. The framers did not pull the Constitution out of thin air, that summer. They’d read their Blackstone. The English common law, the treatises of Grotius, Locke, Montesquieu, Vattel, and a dozen more philosophers and jurists: no blank slate, surely? True, such foundational terms “are not self-defining.” That’s why the framers took care to read the books that defined them.

Did the framers, and those who’ve tried to follow their intentions, understand that American will always need living judges to interpret the Constitution and apply it to cases? Good news, here: they were not idiots. They did indeed understand that. But this did not commit them to “empathy,” exactly, a word that does not loom large in their writings. When Publius considers judicial overreaching in Federalist 78, he says that judges “declare the sense of the law”—rather strongly implying that framers of laws put some sense in there, and do not simply draw boxes marked “to be filled in later.” Publius worries not about empathy or the lack thereof, but rather that judges might “be disposed to exercise WILL instead of JUDGMENT,” to substitute “their pleasure to that of the legislative body.” The will, benevolent or malign, empathetic or cold, does not counsel anyone. The will may command; it may exhort; it does not reason, and it tends to disrespect limits. Judges therefore should not so much empathize or disdain. Judges should judge. That is to say, they should reason, using the law as their guide.

The claim that empathy deserves a central place in judging itself has a history, one traced in Paul Eidelberg’s seminal book, A Discourse on Statesmanship, published some thirty-five years ago. Eidelberg noticed that the Progressives, notably Woodrow
Wilson, required of judges and political men generally not so much prudence, reasoning, judgment, but compassion. Wilson did not suppose judges did not really know what the Constitution meant. He rather supposed that that was the problem. Reasoning founded on Constitutional law tends not toward the expansion of the modern state, including large provisions for public charity, which Progressives so fervently commended. Such reasoning tends to find limits to legislative and executive action, and therefore to government. Compassion, being a passion, tends toward the unlimited, toward boundless ness, an endless horizon. Hence such notions, among Progressives, as “the elastic Constitution” (Wilson) and “the living Constitution” (Justice William Brennan).

And so it has gone, for much of subsequent judicial decision-making by the new liberals or progressives. Compassion “helps” those judges fill in the (alleged) blanks of Constitutional language with, to use Professor Stone’s phrase, “their own political and ideological convictions.” But shouldn’t a constitution, well, constitute something—say, a set of ruling institutions providing a tolerably knowable and stable framework for conducting public business? Precisely what empathy, elasticity, and growth cannot provide?

Geoffrey R. Stone, professor of law at the University of Chicago and editor of The Supreme Court Review, has a pertinent suggestion: the retirement of Judge Stevens and the impending nomination of his successor should spark “a frank discussion” of “the proper role of judges in our constitutional system” [“Our Fill-in-the Blank Constitution,” The New York Times, April 14]. True to his promise of frankness, he charges “conservative” judges with advancing “disingenuous descriptions of what judges—liberal or conservative—actually do.”

Such men as Roberts and Scalia claim to seek the original meaning of the framers, to serve as umpires who call the plays as they see them, according to the rules. But, Professor Stone charges, they do no such thing.

Such Constitutional phrases as freedom of speech, due process of law, free exercise of religion, cruel and unusual punishment do not define themselves, he remarks; “they did not have clear meanings even to the people who drafted them.” Rather, the framers left such definition “to future generations.”

This conservatives all too eagerly have done. “Fueled by their own political and ideological convictions, they make value judgments, often in an often aggressively activist manner that goes well beyond anything the framers themselves envisioned.” The list of horrors proves long: examples include First Amendment protection for advertisers; prohibition of the regulation of guns; the right of the Boy Scouts to exclude gay scoutmasters. Meanwhile, liberal judges have upheld Madisonian principle by striking down laws prohibiting interracial marriage, forbidding forced sterilization, protecting the rights of political dissenters and of minority religious denomination, and similarly handsome things. Bad conservatives. Good liberals.

Conservatives don’t protect the people. They protect “corporations, business interests, the wealthy and other powerful interests in society.” Driven by “their own political and ideological convictions,” conservatives “employ judicial review to protect the powerful rather than the powerless,” pretending to construe the Constitution as written but in fact injuring those “who are unlikely to have their interests fully and fairly considered by the majority” of their fellow citizens.

What conservatives lack and what liberals have, Professor Stone maintains—following President Obama—is empathy. Empathy, fellow-feeling, “helps the judges understand the aspirations”—don’t forget, intentions and meaning are inscrutable—“of the framers.” Not only that, empathy “helps judges understand the effects of the law on the real world,” on “the lives of real people”—as distinguished, presumably, from such surreal people as corporate executives, gun owners, and Boy Scouts

Leaving aside Professor Stone’s rather odd equation of the rich and the powerful with the majority of people in this or any other society—are not property rights, for example, designed in part to protect the few who are rich from the many of us who are not?—two problems arise with this “frank” discussion of judicial deportment.

First, to say that such formulations as free speech, equal protection, and due process had no clear meanings to the framers, that they are “blanks” to be “filled in” by “future generations” of judges, ignores the several centuries of legal precedent and philosophic reflection that preceded the year 1787. The framers did not pull the Constitution out of thin air, that summer. They’d read their Blackstone. The English common law, the treatises of Grotius, Locke, Montesquieu, Vattel, and a dozen more philosophers and jurists: no blank slate, surely? True, such foundational terms “are not self-defining.” That’s why the framers took care to read the books that defined them.

Did the framers, and those who’ve tried to follow their intentions, understand that American will always need living judges to interpret the Constitution and apply it to cases? Good news, here: they were not idiots. They did indeed understand that. But this did not commit them to “empathy,” exactly, a word that does not loom large in their writings. When Publius considers judicial overreaching in Federalist 78, he says that judges “declare the sense of the law”—rather strongly implying that framers of laws put some sense in there, and do not simply draw boxes marked “to be filled in later.” Publius worries not about empathy or the lack thereof, but rather that judges might “be disposed to exercise WILL instead of JUDGMENT,” to substitute “their pleasure to that of the legislative body.” The will, benevolent or malign, empathetic or cold, does not counsel anyone. The will may command; it may exhort; it does not reason, and it tends to disrespect limits. Judges therefore should not so much empathize or disdain. Judges should judge. That is to say, they should reason, using the law as their guide.

The claim that empathy deserves a central place in judging itself has a history, one traced in Paul Eidelberg’s seminal book, A Discourse on Statesmanship, published some thirty-five years ago. Eidelberg noticed that the Progressives, notably Woodrow
Wilson, required of judges and political men generally not so much prudence, reasoning, judgment, but compassion. Wilson did not suppose judges did not really know what the Constitution meant. He rather supposed that that was the problem. Reasoning founded on Constitutional law tends not toward the expansion of the modern state, including large provisions for public charity, which Progressives so fervently commended. Such reasoning tends to find limits to legislative and executive action, and therefore to government. Compassion, being a passion, tends toward the unlimited, toward boundless ness, an endless horizon. Hence such notions, among Progressives, as “the elastic Constitution” (Wilson) and “the living Constitution” (Justice William Brennan).

And so it has gone, for much of subsequent judicial decision-making by the new liberals or progressives. Compassion “helps” those judges fill in the (alleged) blanks of Constitutional language with, to use Professor Stone’s phrase, “their own political and ideological convictions.” But shouldn’t a constitution, well, constitute something—say, a set of ruling institutions providing a tolerably knowable and stable framework for conducting public business? Precisely what empathy, elasticity, and growth cannot provide?

On Friday April 9, 2010, GOP official Allee Bautsch ahd her boyfriend Joe Brown attended a Republican dinner at Brennan’s restaurant in New Orleans. When they left this event they were followed from the restaurant by a group of five white men who hurled insults at them calling Allee a “little blond bitch” and calling Joe a “f**king f*ggot.” They brutally beat and stomped on the young Republican couple just blocks from the restaurant.

Allee Bautsch suffered a broken leg from the beatdown outside to the SRLC dinner at Brennan’s Restaurant in New Orleans. She had her leg operated on over the weekend and it will take her months to recover. Her boyfriend Joe Brown suffered a broken nose, a broken jaw, and a concussion. They were attacked after leaving the Southern Republican Leadership Conference dinner at Brennan’s Restaurant.

(Photo from Jindal’s Facebook Page via The Hayride)

On Saturday, Allee Bautsch’s mother spoke out about the vicious attack. She joined Allee’s friend and said the attackers were leftist protesters.

Yahoo reported:

Allee Bautsch’s mother, Della Berning, has now joined a friend of Bautsch’s in telling Yahoo! News that, contrary to what Brown initially told police, Bautsch and Brown do believe that the attackers were a group of political protesters who followed them after they left the event. Their recollection is not conclusive, of course, and they admit to having no knowledge of the attackers’ underlying motivations.

New Orleans, Louisiana police initially dismissed the savage attack on GOP official Allee Bautsch and her boyfriend Joe Brown in the French Quarter. They reported it as a medical call and did not even interview the couple about the brutal beating until Monday.

NOLA.com reported:

When news of last weekend’s assault of Republican campaign fundraiser Allee Bautsch and her boyfriend broke on Monday, police logs detailing crimes and complaints reported in the French Quarter that night did not list the attack on the pair.

That’s because the April 9 incident was first labeled a medical call, which meant no police report needed to be written. Indeed, according to the initial report released Friday by New Orleans police, it wasn’t until Monday that a detective was assigned to investigate the incident — in which Bautsch broke her leg and her boyfriend, Joseph Brown, broke his jaw.

Monday was also the day news reports and blogs began chattering about the attack, sometimes laden with the juicy possibility the attackers were anti-Republican protesters.

The initial incident report does not resolve the question of whether Bautsch and Brown were attacked by protesters, who had picketed the restaurant they were in earlier that night.

But the sequence of the NOPD’s response to an attack that left Bautsch with a broken leg and Brown with a fractured jaw and nose, raises questions about why the department didn’t deal with the incident as an assault from the get-go. Subsequent police statements and reports about the incident note that officers did respond to the scene, calling an ambulance to take Bautsch and Brown to the hospital.

NOPD spokesman Bob Young said the explanation is simple: The responding officer didn’t know the extent of the couple’s injuries. That officer knew the couple needed help and was told that Brown had been in a fight, but concentrated on getting them medical assistance, he said.

If the officer had known how badly they were hurt, the case would have been reclassified immediately as some kind of battery, Young said.

The Hayride added this on the politically motivated attack on the young Republican couple leaving a GOP dinner.

Most conservative websites and blogs are avoiding this topic like the plague. Why? Because they are afraid. Liberals scream “racism” without the slightest shred of evidence and the mainstream media scream with them, but conservatives are afraid to speak the truth even when faced with clear and convincing evidence. They are cowards.

This is not a court of law and the Iron Rail Gang isn’t on trial (yet), but the conservative media have acted as though Iron Rail must be convicted beyond a reasonable doubt before they can say a word on the topic. It’s no coincidence that the only major conservative media outlet to have accurately covered the story belongs to Andrew Breitbart, because he actually has some guts. The rest of the conservative media still seem to be afraid that the MSM is going to say something bad about them.

One more thing… The anarchists and leftists outside the SLRC event that night had posted an ominous warning on their website before the GOP officials were attacked.
The Hayride reported:

…There was also an eight-page brochure the group put together that did not appear on the Facebook event page for the protest (since removed – there were 209 people who had RSVP’ed for the event and from that roster we found Mauch and Dubinsky), and that brochure was much more ominous. It listed several “Points of Unity,” among them being:

- The SRLC is not welcome in NOLA without a fuss
- Recognize healthcare as a basic human right
- Oppose police oppression, the prison-industrial complex, and the dominant culture of militarism
- Recognize the need for active resistance to confront all forms of oppression, respecting a diversity of tactics

The brochure also contained a map of the five hotels at which SRLC delegates were primarily staying, which is extremely disturbing.

No doubt about it… This was a savage and planned political attack.

Sec. 199. AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to. And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage. When the governor, however intitled, makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion.

Sec. 200. If one can doubt this to be truth, or reason, because it comes from the obscure hand of a subject, I hope the authority of a king will make it pass with him. King James the first, in his speech to the parliament, 1603, tells them thus, I will ever prefer the weal of the public, and of the whole commonwealth, in making of good laws and constitutions, to any particular and private ends of mine; thinking ever the wealth and weal of the commonwealth to be my greatest weal and worldly felicity; a point wherein a lawful king doth directly differ from a tyrant: for I do acknowledge, that the special and greatest point of difference that is between a rightful king and an usurping tyrant, is this, that whereas the proud and ambitious tyrant doth think his kingdom and people are only ordained for satisfaction of his desires and unreasonable appetites, the righteous and just king doth by the contrary acknowledge himself to be ordained for the procuring of the wealth and property of his people, And again, in his speech to the parliament, 1609, he hath these words, The king binds himself by a double oath, to the observation of the fundamental laws of his kingdom; tacitly, as by being a king, and so bound to protect as well the people, as the laws of his kingdom; and expressly, by his oath at his coronation, so as every just king, in a settled kingdom, is bound to observe that paction made to his people, by his laws, in framing his government agreeable thereunto, according to that paction which God made with Noah after the deluge. Hereafter, seed-time and harvest, and cold and heat, and summer and winter, and day and night, shall not cease while the earth remaineth. And therefore a king governing in a settled kingdom, leaves to be a king, and degenerates into a tyrant, as soon as he leaves off to rule according to his laws, And a little after, Therefore all kings that are not tyrants, or perjured, will be glad to bound themselves within the limits of their laws; and they that persuade them the contrary, are vipers, and pests both against them and the commonwealth. Thus that learned king, who well understood the notion of things, makes the difference betwixt a king and a tyrant to consist only in this, that one makes the laws the bounds of his power, and the good of the public, the end of his government; the other makes all give way to his own will and appetite.

Sec. 201. It is a mistake, to think this fault is proper only to monarchies; other forms of government are liable to it, as well as that: for wherever the power, that is put in any hands for the government of the people, and the preservation of their properties, is applied to other ends, and made use of to impoverish, harass, or subdue them to the arbitrary and irregular commands of those that have it; there it presently becomes tyranny, whether those that thus use it are one or many. Thus we read of the thirty tyrants at Athens, as well as one at Syracuse; and the intolerable dominion of the Decemviri at Rome was nothing better.

Sec. 202. Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another. This is acknowledged in subordinate magistrates. He that hath authority to seize my person in the street, may be opposed as a thief and a robber, if he endeavours to break into my house to execute a writ, notwithstanding that I know he has such a warrant, and such a legal authority, as will impower him to arrest me abroad. And why this should not hold in the highest, as well as in the most inferior magistrate, I would gladly be informed. Is it reasonable, that the eldest brother, because he has the greatest part of his father’s estate, should thereby have a right to take away any of his younger brothers portions? or that a rich man, who possessed a whole country, should from thence have a right to seize, when he pleased, the cottage and garden of his poor neighbour? The being rightfully possessed of great power and riches, exceedingly beyond the greatest part of the sons of Adam, is so far from being an excuse, much less a reason, for rapine and oppression, which the endamaging another without authority is, that it is a great aggravation of it: for the exceeding the bounds of authority is no more a right in a great, than in a petty officer; no more justifiable in a king than a constable; but is so much the worse in him, in that he has more trust put in him, has already a much greater share than the rest of his brethren, and is supposed, from the advantages of his education, employment, and counsellors, to be more knowing in the measures of right and wrong.

Sec. 203. May the commands then of a prince be opposed? may he be resisted as often as any one shall find himself aggrieved, and but imagine he has not right done him? This will unhinge and overturn all polities, and, instead of government and order, leave nothing but anarchy and confusion.

Sec. 204. To this I answer, that force is to be opposed to nothing, but to unjust and unlawful force; whoever makes any opposition in any other case, draws on himself a just condemnation both from God and man; and so no such danger or confusion will follow, as is often suggested: for,

Sec. 205. First, As, in some countries, the person of the prince by the law is sacred; and so, whatever he commands or does, his person is still free from all question or violence, not liable to force, or any judicial censure or condemnation. But yet opposition may be made to the illegal acts of any inferior officer, or other commissioned by him; unless he will, by actually putting himself into a state of war with his people, dissolve the government, and leave them to that defence which belongs to every one in the state of nature: for of such things who can tell what the end will be? and a neighbour kingdom has shewed the world an odd example. In all other cases the sacredness of the person exempts him from all inconveniencies, whereby he is secure, whilst the government stands, from all violence and harm whatsoever; than which there cannot be a wiser constitution: for the harm he can do in his own person not being likely to happen often, nor to extend itself far; nor being able by his single strength to subvert the laws, nor oppress the body of the people, should any prince have so much weakness, and ill nature as to be willing to do it, the inconveniency of some particular mischiefs, that may happen sometimes, when a heady prince comes to the throne, are well recompensed by the peace of the public, and security of the government, in the person of the chief magistrate, thus set out of the reach of danger: it being safer for the body, that some few private men should be sometimes in danger to suffer, than that the head of the republic should be easily, and upon slight occasions, exposed.

Sec. 206. Secondly, But this privilege, belonging only to the king’s person, hinders not, but they may be questioned, opposed, and resisted, who use unjust force, though they pretend a commission from him, which the law authorizes not; as is plain in the case of him that has the king’s writ to arrest a man, which is a full commission from the king; and yet he that has it cannot break open a man’s house to do it, nor execute this command of the king upon certain days, nor in certain places, though this commission have no such exception in it; but they are the limitations of the law, which if any one transgress, the king’s commission excuses him not: for the king’s authority being given him only by the law, he cannot impower any one to act against the law, or justify him, by his commission, in so doing; the commission, or command of any magistrate, where he has no authority, being as void and insignificant, as that of any private man; the difference between the one and the other, being that the magistrate has some authority so far, and to such ends, and the private man has none at all: for it is not the commission, but the authority, that gives the right of acting; and against the laws there can be no authority. But, notwithstanding such resistance, the king’s person and authority are still both secured, and so no danger to governor or government,

Sec. 207. Thirdly, Supposing a government wherein the person of the chief magistrate is not thus sacred; yet this doctrine of the lawfulness of resisting all unlawful exercises of his power, will not upon every slight occasion indanger him, or imbroil the government: for where the injured party may be relieved, and his damages repaired by appeal to the law, there can be no pretence for force, which is only to be used where a man is intercepted from appealing to the law: for nothing is to be accounted hostile force, but where it leaves not the remedy of such an appeal; and it is such force alone, that puts him that uses it into a state of war, and makes it lawful to resist him. A man with a sword in his hand demands my purse in the high-way, when perhaps I have not twelve pence in my pocket: this man I may lawfully kill. To another I deliver 100l. to hold only whilst I alight, which he refuses to restore me, when I am got up again, but draws his sword to defend the possession of it by force, if I endeavour to retake it. The mischief this man does me is a hundred, or possibly a thousand times more than the other perhaps intended me (whom I killed before he really did me any); and yet I might lawfully kill the one, and cannot so much as hurt the other lawfully. The reason whereof is plain; because the one using force, which threatened my life, I could not have time to appeal to the law to secure it: and when it was gone, it was too late to appeal. The law could not restore life to my dead carcass: the loss was irreparable; which to prevent, the law of nature gave me a right to destroy him, who had put himself into a state of war with me, and threatened my destruction. But in the other case, my life not being in danger, I may have the benefit of appealing to the law, and have reparation for my 100l. that way.

Sec. 208. Fourthly, But if the unlawful acts done by the magistrate be maintained (by the power he has got), and the remedy which is due by law, be by the same power obstructed; yet the right of resisting, even in such manifest acts of tyranny, will not suddenly, or on slight occasions, disturb the government: for if it reach no farther than some private men’s cases, though they have a right to defend themselves, and to recover by force what by unlawful force is taken from them; yet the right to do so will not easily engage them in a contest, wherein they are sure to perish; it being as impossible for one, or a few oppressed men to disturb the government, where the body of the people do not think themselves concerned in it, as for a raving mad-man, or heady malcontent to overturn a well settled state; the people being as little apt to follow the one, as the other.

Sec. 209. But if either these illegal acts have extended to the majority of the people; or if the mischief and oppression has lighted only on some few, but in such cases, as the precedent, and consequences seem to threaten all; and they are persuaded in their consciences, that their laws, and with them their estates, liberties, and lives are in danger, and perhaps their religion too; how they will be hindered from resisting illegal force, used against them, I cannot tell. This is an inconvenience, I confess, that attends all governments whatsoever, when the governors have brought it to this pass, to be generally suspected of their people; the most dangerous state which they can possibly put themselves in. wherein they are the less to be pitied, because it is so easy to be avoided; it being as impossible for a governor, if he really means the good of his people, and the preservation of them, and their laws together, not to make them see and feel it, as it is for the father of a family, not to let his children see he loves, and takes care of them.

Sec. 210. But if all the world shall observe pretences of one kind, and actions of another; arts used to elude the law, and the trust of prerogative (which is an arbitrary power in some things left in the prince’s hand to do good, not harm to the people) employed contrary to the end for which it was given: if the people shall find the ministers and subordinate magistrates chosen suitable to such ends, and favoured, or laid by, proportionably as they promote or oppose them: if they see several experiments made of arbitrary power, and that religion underhand favoured, (tho’ publicly proclaimed against) which is readiest to introduce it; and the operators in it supported, as much as may be; and when that cannot be done, yet approved still, and liked the better: if a long train of actions shew the councils all tending that way; how can a man any more hinder himself from being persuaded in his own mind, which way things are going; or from casting about how to save himself, than he could from believing the captain of the ship he was in, was carrying him, and the rest of the company, to Algiers, when he found him always steering that course, though cross winds, leaks in his ship, and want of men and provisions did often force him to turn his course another way for some time, which he steadily returned to again, as soon as the wind, weather, and other circumstances would let him?

Despite praise as a civil libertarian and liberal advocate, Justice Stevens’ real friend was government.

Justice John Paul Stevens, retiring before the United States Supreme Court’s fall term, has long been considered the leader of the liberal’s intellectual bloc on the Court.  While praise from the Left for Stevens will continue throughout the summer, the Obama administration has made it clear it plans to replace the Justice with a “like-minded” liberal.

Stevens penned the majority opinion in Hamdan v. Rumsfeld (2006), concerning the Bush Administration’s treatment of Guantanamo Bay detainees after 9/11.  He held that the administration’s conduct violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Convention.  He was also influential in establishing the privilege of habeas corpus for suspected terrorists in Boumediene v. Bush (2008).  For his role in these cases, many liberals and civil libertarians have held Stevens in high regard.  In addition, Stevens joined the conservative bloc of the Court in Crawford v. Washington (2006), overturning years of bad law regarding the Confrontation Clause of the Sixth Amendment and providing bright-line protections against out-of-court statements used against the accused at trial.  With government intrusion and involvement already secured and guaranteed, Stevens frequently voted to scrutinize government procedure and broaden protections for the accused.

Stevens, however, was not so friendly to the cause of freedom and the protection of individuals from such interference.  Stevens was skeptical, sometimes fearful of individual rights, consistently deferring to government power and tolerating its expansion into private lives.

In Kyllo v. United States (2001), the nation’s highest court heard the issue of whether thermal imaging could be used to “search” homes without a warrant.  This police practice involved measuring and monitoring the heat radiation from private homes to find persons cultivating indoor marijuana.  The Court held that the use of thermal imaging to detect activity within a home constituted a search under the Fourth Amendment and required a warrant.  Even the ACLU filed an amicus brief in favor of the Court’s holding. Stevens dissented, arguing that there was no reasonable expectation to privacy, choosing to refer to the government’s behavior as “surveillance” instead of a “search.”  Had Stevens garnered an additional vote on the bench, this police “surveillance” would be law, reaching inside the private home at the whim of Big Brother.

Stevens again voted in favor of government expansion at the expense of individual rights, writing the majority opinion for the controversial Kelo v. City of New London (2005) case.  Kelo involved a plan by the local government to take private property and give it to another private entity for purposes of economic restoration.  It held that private property, taken by government for other private economic development, constituted “public use” under the Fifth Amendment.  The infamous case led President George W. Bush to issue an executive order limiting the decision’s effect on the federal government takings policy, and the majority of states to enact laws protecting state citizens from Kelo’s reach.

Perhaps most alarming was Stevens dissent in Texas v. Johnson (1989), where Stevens voted to uphold a ban on burning the United States flag.  As a World War II veteran, Justice Steven’s view of flag-burning as a deplorable act is understandable; his explanation for upholding a constitutional ban is not.  Stevens wrote that the case had an “intangible dimension” that made the Court’s usual First Amendment analysis inapplicable.  This “intangible dimension” apparently comes from the flag’s status as “a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations.” He concluded by writing, “The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for – and our history demonstrates that they are – it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.”  Stevens’s strange logic can be summed up: The First Amendment must be curtailed in order to protect freedom, liberty, and equality; to save freedom, we must restrict it (in this case, imprison a flag-burner).

In the landmark Second Amendment case, D.C. v. Heller (2008), Stevens argued that the “right to bear arms” was not an individual right, but a collective right that was conditioned upon membership in a defined militia.  More shocking, Stevens made an analogous argument that the First Amendment, specifically the right to assemble, was merely a “collective right” because it could not be exercised alone.  Conceding it takes two to tango, the right to assemble belongs to the individual and is not conditioned on involvement in a specific assembly.  As pointed out by the majority opinion, penned by Justice Antonin Scalia, “The unamended Constitution and the Bill of Rights use the phrase ‘right of the people’ two other times [along with the Second Amendment], in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people). All three of these instances unambiguously refer to individual rights, not ”collective’ rights, or rights that may be exercised only through participation in some corporate body.^”

More recently, in Citizens United v. Federal Election Commission (2010), the Court held that corporate spending on individual political candidate “electioneering communication” could not be limited under the First Amendment.  For advocates of individual rights, this decision was a breath of fresh air.  The First Amendment protects both the individual’s freedom of speech and right to assemble; therefore, it follows that the individual would have the same freedom of speech when assembled in an association; even if that association is in the corporate form.  Stevens saw his concerns with corporate influence in elections a more important issue than the individual’s freedom of speech and right to assemble.  Just as with flag-burning, Stevens’s own arbitrary concerns trumped the freedom of individuals.  Justice Scalia opined that Stevens’ dissent was “in splendid isolation from the text of the First Amendment.”

Justice Stevens, a member of the Court since 1975, displayed distrust for freedom and voted on the wrong side of many significant constitutional issues.  He willingly eroded individual rights in favor of intrusive government policy.  Stevens’ uneasiness with freedom and individual rights led him to substitute textually sound, constitutional arguments with “intangibles” and fearful hypotheticals involving individuals abusing their rights at the expense of others.  Justice Stevens decided to hang up his old, worn, black robe for the final time.  May his replacement, likely to have a long tenure on the bench, hold not the same trepidation regarding freedom, but wear the robe in protection of individual rights.

Despite praise as a civil libertarian and liberal advocate, Justice Stevens’ real friend was government.

Justice John Paul Stevens, retiring before the United States Supreme Court’s fall term, has long been considered the leader of the liberal’s intellectual bloc on the Court.  While praise from the Left for Stevens will continue throughout the summer, the Obama administration has made it clear it plans to replace the Justice with a “like-minded” liberal.

Stevens penned the majority opinion in Hamdan v. Rumsfeld (2006), concerning the Bush Administration’s treatment of Guantanamo Bay detainees after 9/11.  He held that the administration’s conduct violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Convention.  He was also influential in establishing the privilege of habeas corpus for suspected terrorists in Boumediene v. Bush (2008).  For his role in these cases, many liberals and civil libertarians have held Stevens in high regard.  In addition, Stevens joined the conservative bloc of the Court in Crawford v. Washington (2006), overturning years of bad law regarding the Confrontation Clause of the Sixth Amendment and providing bright-line protections against out-of-court statements used against the accused at trial.  With government intrusion and involvement already secured and guaranteed, Stevens frequently voted to scrutinize government procedure and broaden protections for the accused.

Stevens, however, was not so friendly to the cause of freedom and the protection of individuals from such interference.  Stevens was skeptical, sometimes fearful of individual rights, consistently deferring to government power and tolerating its expansion into private lives.

In Kyllo v. United States (2001), the nation’s highest court heard the issue of whether thermal imaging could be used to “search” homes without a warrant.  This police practice involved measuring and monitoring the heat radiation from private homes to find persons cultivating indoor marijuana.  The Court held that the use of thermal imaging to detect activity within a home constituted a search under the Fourth Amendment and required a warrant.  Even the ACLU filed an amicus brief in favor of the Court’s holding. Stevens dissented, arguing that there was no reasonable expectation to privacy, choosing to refer to the government’s behavior as “surveillance” instead of a “search.”  Had Stevens garnered an additional vote on the bench, this police “surveillance” would be law, reaching inside the private home at the whim of Big Brother.

Stevens again voted in favor of government expansion at the expense of individual rights, writing the majority opinion for the controversial Kelo v. City of New London (2005) case.  Kelo involved a plan by the local government to take private property and give it to another private entity for purposes of economic restoration.  It held that private property, taken by government for other private economic development, constituted “public use” under the Fifth Amendment.  The infamous case led President George W. Bush to issue an executive order limiting the decision’s effect on the federal government takings policy, and the majority of states to enact laws protecting state citizens from Kelo’s reach.

Perhaps most alarming was Stevens dissent in Texas v. Johnson (1989), where Stevens voted to uphold a ban on burning the United States flag.  As a World War II veteran, Justice Steven’s view of flag-burning as a deplorable act is understandable; his explanation for upholding a constitutional ban is not.  Stevens wrote that the case had an “intangible dimension” that made the Court’s usual First Amendment analysis inapplicable.  This “intangible dimension” apparently comes from the flag’s status as “a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations.” He concluded by writing, “The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for – and our history demonstrates that they are – it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.”  Stevens’s strange logic can be summed up: The First Amendment must be curtailed in order to protect freedom, liberty, and equality; to save freedom, we must restrict it (in this case, imprison a flag-burner).

In the landmark Second Amendment case, D.C. v. Heller (2008), Stevens argued that the “right to bear arms” was not an individual right, but a collective right that was conditioned upon membership in a defined militia.  More shocking, Stevens made an analogous argument that the First Amendment, specifically the right to assemble, was merely a “collective right” because it could not be exercised alone.  Conceding it takes two to tango, the right to assemble belongs to the individual and is not conditioned on involvement in a specific assembly.  As pointed out by the majority opinion, penned by Justice Antonin Scalia, “The unamended Constitution and the Bill of Rights use the phrase ‘right of the people’ two other times [along with the Second Amendment], in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people). All three of these instances unambiguously refer to individual rights, not ”collective’ rights, or rights that may be exercised only through participation in some corporate body.^”

More recently, in Citizens United v. Federal Election Commission (2010), the Court held that corporate spending on individual political candidate “electioneering communication” could not be limited under the First Amendment.  For advocates of individual rights, this decision was a breath of fresh air.  The First Amendment protects both the individual’s freedom of speech and right to assemble; therefore, it follows that the individual would have the same freedom of speech when assembled in an association; even if that association is in the corporate form.  Stevens saw his concerns with corporate influence in elections a more important issue than the individual’s freedom of speech and right to assemble.  Just as with flag-burning, Stevens’s own arbitrary concerns trumped the freedom of individuals.  Justice Scalia opined that Stevens’ dissent was “in splendid isolation from the text of the First Amendment.”

Justice Stevens, a member of the Court since 1975, displayed distrust for freedom and voted on the wrong side of many significant constitutional issues.  He willingly eroded individual rights in favor of intrusive government policy.  Stevens’ uneasiness with freedom and individual rights led him to substitute textually sound, constitutional arguments with “intangibles” and fearful hypotheticals involving individuals abusing their rights at the expense of others.  Justice Stevens decided to hang up his old, worn, black robe for the final time.  May his replacement, likely to have a long tenure on the bench, hold not the same trepidation regarding freedom, but wear the robe in protection of individual rights.

Despite praise as a civil libertarian and liberal advocate, Justice Stevens’ real friend was government.

Justice John Paul Stevens, retiring before the United States Supreme Court’s fall term, has long been considered the leader of the liberal’s intellectual bloc on the Court.  While praise from the Left for Stevens will continue throughout the summer, the Obama administration has made it clear it plans to replace the Justice with a “like-minded” liberal.

Stevens penned the majority opinion in Hamdan v. Rumsfeld (2006), concerning the Bush Administration’s treatment of Guantanamo Bay detainees after 9/11.  He held that the administration’s conduct violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Convention.  He was also influential in establishing the privilege of habeas corpus for suspected terrorists in Boumediene v. Bush (2008).  For his role in these cases, many liberals and civil libertarians have held Stevens in high regard.  In addition, Stevens joined the conservative bloc of the Court in Crawford v. Washington (2006), overturning years of bad law regarding the Confrontation Clause of the Sixth Amendment and providing bright-line protections against out-of-court statements used against the accused at trial.  With government intrusion and involvement already secured and guaranteed, Stevens frequently voted to scrutinize government procedure and broaden protections for the accused.

Stevens, however, was not so friendly to the cause of freedom and the protection of individuals from such interference.  Stevens was skeptical, sometimes fearful of individual rights, consistently deferring to government power and tolerating its expansion into private lives.

In Kyllo v. United States (2001), the nation’s highest court heard the issue of whether thermal imaging could be used to “search” homes without a warrant.  This police practice involved measuring and monitoring the heat radiation from private homes to find persons cultivating indoor marijuana.  The Court held that the use of thermal imaging to detect activity within a home constituted a search under the Fourth Amendment and required a warrant.  Even the ACLU filed an amicus brief in favor of the Court’s holding. Stevens dissented, arguing that there was no reasonable expectation to privacy, choosing to refer to the government’s behavior as “surveillance” instead of a “search.”  Had Stevens garnered an additional vote on the bench, this police “surveillance” would be law, reaching inside the private home at the whim of Big Brother.

Stevens again voted in favor of government expansion at the expense of individual rights, writing the majority opinion for the controversial Kelo v. City of New London (2005) case.  Kelo involved a plan by the local government to take private property and give it to another private entity for purposes of economic restoration.  It held that private property, taken by government for other private economic development, constituted “public use” under the Fifth Amendment.  The infamous case led President George W. Bush to issue an executive order limiting the decision’s effect on the federal government takings policy, and the majority of states to enact laws protecting state citizens from Kelo’s reach.

Perhaps most alarming was Stevens dissent in Texas v. Johnson (1989), where Stevens voted to uphold a ban on burning the United States flag.  As a World War II veteran, Justice Steven’s view of flag-burning as a deplorable act is understandable; his explanation for upholding a constitutional ban is not.  Stevens wrote that the case had an “intangible dimension” that made the Court’s usual First Amendment analysis inapplicable.  This “intangible dimension” apparently comes from the flag’s status as “a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations.” He concluded by writing, “The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for – and our history demonstrates that they are – it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.”  Stevens’s strange logic can be summed up: The First Amendment must be curtailed in order to protect freedom, liberty, and equality; to save freedom, we must restrict it (in this case, imprison a flag-burner).

In the landmark Second Amendment case, D.C. v. Heller (2008), Stevens argued that the “right to bear arms” was not an individual right, but a collective right that was conditioned upon membership in a defined militia.  More shocking, Stevens made an analogous argument that the First Amendment, specifically the right to assemble, was merely a “collective right” because it could not be exercised alone.  Conceding it takes two to tango, the right to assemble belongs to the individual and is not conditioned on involvement in a specific assembly.  As pointed out by the majority opinion, penned by Justice Antonin Scalia, “The unamended Constitution and the Bill of Rights use the phrase ‘right of the people’ two other times [along with the Second Amendment], in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people). All three of these instances unambiguously refer to individual rights, not ”collective’ rights, or rights that may be exercised only through participation in some corporate body.^”

More recently, in Citizens United v. Federal Election Commission (2010), the Court held that corporate spending on individual political candidate “electioneering communication” could not be limited under the First Amendment.  For advocates of individual rights, this decision was a breath of fresh air.  The First Amendment protects both the individual’s freedom of speech and right to assemble; therefore, it follows that the individual would have the same freedom of speech when assembled in an association; even if that association is in the corporate form.  Stevens saw his concerns with corporate influence in elections a more important issue than the individual’s freedom of speech and right to assemble.  Just as with flag-burning, Stevens’s own arbitrary concerns trumped the freedom of individuals.  Justice Scalia opined that Stevens’ dissent was “in splendid isolation from the text of the First Amendment.”

Justice Stevens, a member of the Court since 1975, displayed distrust for freedom and voted on the wrong side of many significant constitutional issues.  He willingly eroded individual rights in favor of intrusive government policy.  Stevens’ uneasiness with freedom and individual rights led him to substitute textually sound, constitutional arguments with “intangibles” and fearful hypotheticals involving individuals abusing their rights at the expense of others.  Justice Stevens decided to hang up his old, worn, black robe for the final time.  May his replacement, likely to have a long tenure on the bench, hold not the same trepidation regarding freedom, but wear the robe in protection of individual rights.