Abortion News

What a coincidence that I post a seven-year-old writing of mine about abortion exactly when the U.S. House of Representatives considers (and rejects) a bill penalizing "sex-selective abortion."

The rejection of the bill was correct, but as always it was for the wrong reason.  The federal government has no constitutional power to regulate abortion, for good or for ill.  That should have been the end of the entire debate.  I highly doubt a single Democrat opposed the bill on that basis; quite to the contrary, it is apparent that the Democratic opposition stems from the desire to preserve the federal overreaching epitomized by Roe.  As for the Republicans, their advocacy of this bill accomplished nothing more than demonstrate once again that their "limited government" rhetoric is a lie.  At least the Democrats are honest totalitarians.

Apart from the legal perspective, it is worth pausing to note the impossibility of supporting the unfettered "right" to an abortion on the one hand, yet also restricting discriminatory abortions on the other.  This cognitive dissonance will cause serious trouble for the left as discriminatory abortions continue to proliferate.  It can and should send a chill down our spine when people -- who otherwise would be eager to have a child -- decide to terminate him or her because of sex, disability, or sexual preference.  But if you have thrown your lot in with those who regard abortion as irreproachable, you'll just have to deal with it.

Abortion

One of the most divisive issues in modern America is whether a woman may choose to terminate her pregnancy. This debate revolves around an antecedent question of both scientific and philosophical proportions: when does human life begin? For if a fetus may at some point during the pregnancy be considered a human life, then the mother’s rights are no longer the only ones at stake and abortion can plausibly be characterized as murder.

Like many other controversies, the abortion dilemma does not receive specific mention in the Constitution. Such silence means that the federal government lacks power to resolve the debate in favor of either side (unless a constitutional amendment grants such power). Conversely, this constitutional silence means that the States enjoy the ability to tackle the issue in any way they see fit, thereby fulfilling the competitive, experimental function that the Founders intended. Indeed, States had a long history of legislating on abortion – before, during, and after the adoption of the Fourteenth Amendment – so the Fourteenth Amendment did not in any way alter the situation. Such decentralization not only accommodated the preferences of diverse communities, but it also de-fused the bitter, no-holds-barred national acrimony that has descended upon us.

With its 1973 decision in Roe v. Wade, the Supreme Court acted even more unprofessionally than usual by taking sides in the abortion debate and holding that the citizens of the several States could no longer decide for themselves how best to resolve it. What makes this decision especially ludicrous is that the Court invented this “right” out of thin air, whereas with most of its other decisions, the Court had “incorporated” (however erroneously) specific provisions from the Bill of Rights into the Fourteenth Amendment and against the States.*

In Roe, the Court was dabbling in the alchemy known as “substantive due process.” Pursuant to that amorphous doctrine, the Fourteenth Amendment’s key language – “nor shall any State deprive any person of life, liberty, or property, without due process of law” – allows the Court to intervene even when there has been due process of law . . . if the result of that process upsets the Court’s sensibilities. In other words, the Court has converted a procedural guarantee into a guarantee of substantive (i.e., Court-approved) results. This frees the Court from obeying constitutional text, as well as from respecting the absence of constitutional text.

In the 1992 ruling of Planned Parenthood Of Southeastern Pennsylvania v. Casey the Court had an opportunity to re-visit the mess it had made and return abortion to state jurisdiction, where it always belonged. Many of the Court members had reflected on the brazenness of Roe and appeared poised to reverse it. However, Justice Sandra Day O’Connor flinched when authoring the Court’s majority opinion. Justice O’Connor – whose capacity for indecision has made her a modern hero – felt that even though Roe was flawed, its core holding should remain undisturbed because of the nineteen intervening years of popular reliance on it. To soothe her conscience, she slightly broadened States’ ability to regulate abortion, yet without returning their ability to outlaw it completely. That is to say, she split the baby. By deeming these paltry nineteen years weightier than two hundred years of constitutional law and practice, Justice O’Connor brazenly exhibited her lack of judicial temperament.  In a complete about-face, she rejected her own reasoning in 2003 when holding that any reliance on precedent concerning state anti-sodomy laws could be ignored without undermining the Court's legitimacy or consistency.  (To be discussed in the next installment.)        

Our ongoing national “conversation” over abortion has vulgarized political discourse and spawned legions of gadflies whose sole purpose is to swirl around this festering issue. As the Founding Fathers warned, the nationalization of political life destroys the tolerance and flexibility that a federal, decentralized system of government fosters. But then again, perhaps the nationalization of abortion was the result, rather than the cause, of our increasing inability to act like adults. 

 ____________________________________________________________________________ *Also infuriating about the Court’s quest to protect a non-existent abortion “right” is the fact that the Court simultaneously has refused to protect a right that does appear in the clear language of the Fourteenth Amendment, namely property -- the Court blithely allows States and their subdivisions to trample property rights on the slenderest of pretexts. While it’s true that the Fourteenth Amendment was never intended to make the Court a “perpetual censor” on state laws concerning either abortion or property, the Court’s vigilance to protect the former at the expense of the latter reveals the Court for the nakedly partisan body it has become.

Freedom Of Speech

The Fourteenth-Amendment jurisprudence requiring States to obey the “free-speech” clause of the First Amendment captures the essence of the bait and switch: while appearing to strike a blow for individual freedom, the Court in fact poked enough “exceptions” into free speech to transform that once-solid concept into Swiss cheese. As a result, the Court now enjoys the perpetual power to re-define what types of speech we’re allowed to engage in.

As with the rest of the Bill of Rights, the First Amendment’s “free-speech” clause functions solely as a reminder of the federal government’s limited, enumerated powers. States have always regulated speech such as libel, slander, incitement, and obscenity; the First Amendment could not and did not restrict States from using their police power in this regard. The most recurring example – often trotted out to support impermissible federal speech restrictions – is a State’s prerogative to prohibit someone from shouting “fire” in a crowded theater. 

Yet this crystal-clear distinction between the States’ power to regulate speech on the one hand versus federal impotence to regulate speech on the other hand could not survive the meddlesome twentieth century. Similar to the farcical jurisprudence regarding religion, the Court simply announced one day that the “free-speech” clause restricts the States, using the familiar ruse of upholding the state law in question. In 1925 the Court reviewed a New York criminal statute that penalized “criminal anarchy,” such as advocacy of overthrowing organized government by force.* Without any historical or legal analysis, the Court decreed that “we may and do assume that freedom of speech and of the press – which are protected by the First Amendment from abridgment by Congress – are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Upon making this decree, the Court proceeded to tear a hole in this “fundamental right” by holding that “the freedom of speech and of the press which is secured by the Constitution [ ] does not confer an absolute right to speak or publish, without responsibility, whatever one may choose . . . .” 

After plowing this territory, the Court went on to sow scores of opinions that 1) decreased state power over speech, while 2) increasing federal power over speech. 

With regard to the former, States lost much of their ability to craft policies advancing their citizens’ standards of propriety and decency. California lost the ability to prohibit a man from entering a county courthouse while wearing a shirt with a profane slogan. Kentucky lost the ability to set advertising standards for its attorneys (despite the fact that attorneys are officers of the court and eligible to practice only at a State’s pleasure).** Texas lost the ability to penalize flag-burning (despite many Supreme Court decisions allowing States to regulate the time, place, and manner of speech, if not the content). Alabama lost the ability to grant its “public-figure” citizens monetary recovery for defamation, unless those citizens could show that the defamation was uttered with knowledge of its falsity or with “reckless disregard” for its truth or falsity (a fabricated standard and nearly impossible to satisfy). Georgia citizens lost the ability to determine what constitutes obscene entertainment worthy of penalty. Iowa lost the ability to enforce a dress code for its public-school students. And Arizona lost the ability to restrain prison inmates from posting on the Internet, since a federal judge subscribed to the cockamamie theory that a convict enjoys not only an unvarnished right of free speech, but also a right of access to any technological means that may facilitate such speech. 

On the other side of the equation, the federal government reaped the benefits of the various novel exceptions to the First Amendment’s uncompromising words. Congress won the ability to criminalize speech aimed at overthrowing the government. Congress won the ability to criminalize the mailing of “obscene” materials. Congress won the ability to regulate advertising and similar “commercial” endeavors. Congress won the ability to regulate obscenity in the broadcast media. Congress won the ability to require “fairness” in the viewpoints presented in the broadcast media. Congress won the ability to compel cable providers to carry the signals of broadcasters. During the Bush administration, Congress won the ability to regulate monetary contributions, individual expenditures, and advertising in the context of political campaigns (i.e., the brand of speech most especially contemplated by the First Amendment’s protections).***  The Court showed at least some sanity more recently in Citizens United by holding that a corporation may spend its own money to pursue political speech, but even that basic recognition of the federal government's limited power has sparked tremendous controversy among an American public now disturbingly uncomfortable with the concept of freedom.

The pristine command that Congress shall make no law restricting freedom of speech has given way to a fickle Supreme Court that insists on re-visiting and re-defining what “freedom of speech” really means. Whether it’s “obscenity,” “commercial speech,” “incitement,” or any other orchestrated basis for federal intrusion, the boundaries of our speech have been steadily transferred out of our immediate control and to the denizens of Washington, D.C. (the very people whom the First Amendment sought to exclude from determining these matters).

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* This type of law proliferated during America’s first “Red Scare,” which erupted in the 1920s and ’30s. The birth of the Soviet Union had spurred the growth of several left-wing groups, and many Americans reacted with alarm. 

** This attorney-advertising holding illustrates yet another example of how the difference between rights and benefits – mentioned previously with regard to segregation in public schools – has gone extinct. When a State sets speech conditions for its employees and officers, there is clearly no violation of individual rights because there is no inherent right to the employment in the first place. That which may be completely denied may also be conditionally granted. As the celebrated Oliver Wendell Holmes observed: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him." McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517-18 (Mass. 1892).  Today's court venerates Holmes in name, yet trashes this gem of his jurisprudence by cloaking recipients of public largesse with a "right" to challenge and eliminate speech conditions attached to that largesse.

*** President Bush openly admitted that he believed this campaign “reform” measure was unconstitutional, but he then proceeded to sign it into law on the belief that the Supreme Court would have the gumption he lacked to strike it down (which belief turned out to be wrong at the time). In so doing, Bush proved himself not only a coward, but also a liar who violated his oath of office to “preserve, protect and defend the Constitution of the United States.”

Memorial Day

Today we commemorate the people who put their lives at risk with the goal of preserving ours.  As Richard Weaver once explained, the true soldier is not a thoughtless brute but rather the last defender of reason, the ultima ratio when all other attempts have failed.

It is tragic that the modern federal government sends these heroes into harm's way for illegal and immoral reasons.  America's wars today are undeclared by Congress, and they often violate the sacred principles laid down at Nuremberg and in the United Nations Charter, as I've explained in various previous posts.

I would encourage all people in uniform to take your faith (if any) in God and your oath to uphold the Constitution just as seriously as you take your missions.  If you honestly believe that fighting a particular war or following a particular order comports with the supreme law of God or of the United States, then do what you must and prevail.  However, if your conscience tells you that something is unjust or illegal, then once again do what you must and stand down.  "Following orders" wasn't a sufficient argument during the tribunals held at Nuremberg or Tokyo, and it is not a sufficient argument to preserve your soul.

Either way you decide, most of us do thank you.  

Fond Memory

A hot Miami night of neon, sweat, and sound.
I find refuge in long, cool hair that cascades across my face
And washes away my worries . . . for now.

Separation Of Church And State

On November 13, 2003, a nine-member panel of judges voted unanimously to remove Alabama Supreme Court Chief Justice Roy Moore from his post for violating the Canon of Judicial Ethics. Had he accepted bribes? Had he made political speeches about cases under his review? Or had he engaged in secret communications with a particular side to a legal dispute, as had U.S. Supreme Court Justice Frankfurter in Brown v. Board of Education? No. According to the panel, he had done something far worse: he had refused to obey a federal court injunction ordering him to remove a stone rendering of the Ten Commandments from his courthouse. This despite the panel’s own opening prayer that day, not to mention the prominent presence of the Ten Commandments at the United States Supreme Court itself. The Kafkaesque ordeal in which Justice Moore found himself had originated with the twisted jurisprudence surrounding the Fourteenth Amendment, an amendment that makes no mention of church and state.

Before the Fourteenth Amendment ever had come into existence, some States went so far as to establish official churches – an order of magnitude more serious than placing mere religious monuments on public property.* No court dreamed of interfering in these activities because nothing in the Constitution prohibits them, and States enjoy the right to do anything not specifically prohibited in the Constitution’s few pages. To be sure, the federal government could not establish a church, since the federal government can do only that which the Constitution allows, and no enumerated power authorizes a national church. The First Amendment serves as a reminder of this inherent limitation of the federal government by cautioning that “Congress shall make no law respecting an establishment of religion . . . .” Nothing in the First Amendment curtails the power of the States to involve themselves in religious activity, and when the Fourteenth Amendment was debated and passed in 1868, no one treated it as changing that state of affairs.**

So how did it come to pass that the “establishment clause” of the First Amendment got applied to the States at all? To put it bluntly, the Supreme Court just decided to do it. This first occurred in 1947, when in Everson v. Board Of Education the Court reviewed a New Jersey law that reimbursed parents for the cost of sending their children to parochial schools on public-school buses. Nowhere in the opinion did the Court analyze how or why the eighty-year-old Fourteenth Amendment made the First Amendment relevant. Instead, the Court simply declared it to be so and launched into a flowery paean to the Founding Fathers and religious diversity. Although the Court ultimately upheld the law, the Court had presumptuously asserted the ability to examine such arrangements through the lens of the First Amendment’s “establishment clause.”

After crossing that Rubicon, the Court grew more brazen. In 1948 the Court in McCollum v. Board Of Education struck down an Illinois school board’s practice of allowing students to attend sectarian classes located in public schools and taught by parochial instructors. In 1962 the Court in Engel v. Vitale prohibited New York public-school officials from leading students in a daily recital of a non-denominational prayer. Even when an activity was not “coerced” by school officials, the Court nevertheless intervened. For example, in 1985 the Court in Wallace v. Jaffree nullified an Alabama law allowing schools to set aside one minute each day for students to engage in “meditation and voluntary prayer.” The Court later in Lee v. Weisman prohibited the reading of a non-sectarian prayer at a middle-school graduation – where no student participation was required – on the basis that some students might feel marginalized.

Apart from the school context (where feelings of exclusion had assumed full status as constitutional determinants), the Court showcased its prowess for secularizing general public activities as well. This came to the fore in 1989 with two apparently contradictory decisions arising from the same case. First the Court found it improper for a Catholic organization to place a nativity scene on the steps of a county courthouse. In the same breath, though, the Court allowed a menorah to be displayed at a city-county building. The stated rationale for banning the nativity scene was that “nothing in the context of the display detracts from the crèche’s religious message.” With the menorah, however, the “religious message” of the display was sufficiently watered-down with secular symbols to suit the Court’s taste: “the relevant question [is] whether the combined display of the tree, the sign [saluting liberty], and the menorah has the effect of endorsing both Christian and Jewish faiths, or rather simply recognizes that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society. [The] latter seems for more plausible . . . .”

So this is the path we have trod: from a Constitution that places no bar on States’ involvement in religion, to a Court that decides in its own infinite wisdom what comprises “too much” religion for display in the public sphere. Roy Moore found himself at the wrong end of that path, but not because he had lost his way. Those who dominate America’s political and judicial firmament detest religion, not only because it would acquaint them with the concept of shame, but also because of its respect for an authority that transcends any earthly source such as their own sorry selves. Roy Moore reminded them that America was founded with a view to that higher authority, and that they, not he, were in the wrong. Having stood up for justice despite little chance of victory, Roy Moore achieved greater honor than those Lilliputians judging him can ever aspire to.

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*Connecticut, Massachusetts, and New Hampshire maintained Congregationalism as their official church for decades after they ratified the Constitution. Georgia and South Carolina officially embraced the Anglican Church into the nineteenth century, also long after ratifying the Constitution.

**It was the Republicans who originally ramrodded the Fourteenth Amendment into the Constitution, yet even they did not think that the Amendment curtailed the States’ involvement in religion. In a telling episode from the Republican presidential nominating convention of 1880, the party considered a plank for a constitutional amendment to bar the States from appropriating money for religious schools . . . a measure hardly worth debating if the recently-passed Fourteenth Amendment had already accomplished that purpose.

Not The Land Of The Free Or The Home Of The Brave

Half of U.S. Lives in Household Getting Benefits.  Incredible.  Even more incredible are all the defensive comments from people drawing Social Security payments, usually on the lame pretext that this is "their" money coming back to them.  Newsflash:  Social Security taxes are not deposited into any sort of fund to grow and be returned to you upon retirement. Rather, the federal government immediately uses that money to pay current Social Security recipients and to fund its many other unconstitutional programs. It is just another tax, and Social Security is just another program robbing Peter to pay Paul.  Even if the taxes had been placed into a trust fund to grow, it reflects poorly on the American people when they prefer to surrender their liberty rather than rely on themselves, their family, or their friends to prepare for retirement in a voluntary and responsible manner.  It reflects even worse on those Americans who object to Social Security but still feel entitled to take it because they were forced to pay in, as if a second crime could purge the first.

What a deluded and degraded bunch we have become.  The people who fought to secure our independence would weep. 

Racial Segregation

In 1954 the Supreme Court issued one of its most famous decisions ever in Brown v. Board of Education, ruling that all racial classifications are “suspect” and that the States could no longer segregate black and white public-school students without offending the Equal Protection clause of the Fourteenth Amendment, even if the segregated facilities were of equal quality. The decision resonates even to the present day because it somehow “feels” right – surely a just nation cannot countenance the forced segregation of the races. And to its credit, the Brown decision concerns itself with the class of individuals – African-Americans – whom the Fourteenth Amendment was designed to protect. Yet a moment’s reflection on the true nature of this ruling reveals that it has neither law, reason, ethics, nor morals to recommend it.

In a legal sense, the fatal deficiency of Brown lies in the fact that racial segregation existed during the passage of the Fourteenth Amendment in 1868 – none of the state or federal legislators approving the Fourteenth Amendment treated the amendment as abolishing this practice. This is one of the main reasons the Supreme Court originally rejected a challenge to segregation in 1896. The language of Brown makes no attempt even to cloak itself with a legal justification; the decision stands as a testament to the Court’s willingness to alter the Constitution’s meaning to suit the Court’s own purposes, and the Court plainly exceeded its legitimate powers to effect a social outcome.

In an ethical sense, Brown fails due to the fraudulent method by which it was procured. When oral arguments were made to the Court in 1952, the majority of the Court members were poised to reject the challenge to public-school segregation as entirely lacking a legal basis. The peerless Justice Felix Frankfurter, however, embarked on a conspiracy to avoid this outcome. He engineered a two-year delay by setting re-argument of the case for 1954. During that additional time he conducted illicit, unethical communications with officials from the Justice Department who had argued in favor of ending segregation. Those communications were aimed at helping the Justice Department to craft written and oral arguments that had a better chance of swaying the other Court members on re-argument, and Frankfurter went so far as to use code names for the other Justices during these communications in order to avoid notice. The delay also secured the death of Chief Justice Fred Vinson and heralded the arrival of new Chief Justice Earl Warren, who never hesitated at twisting the Constitution to his objectives. These serious breaches of legal ethics were revealed in 1987 by one of the Justice officials involved, much to the shock of even Brown’s supporters.

In a rational sense, the decision fails because civil rights are not jeopardized when a State offers a benefit with certain conditions, such as segregation, attached. Education at public expense is not an individual right, but a discretionary benefit, an “act of legislative grace.” States carry no obligation to provide education at taxpayer expense.* If one may refuse to provide a service completely, it follows that one may attach conditions to that service when provided. Otherwise put, since a State may deprive its citizens entirely of taxpayer-financed education, then a State may also deprive its citizens of racially integrated taxpayer-financed education without violating their civil rights.  This same logic is employed to deny private citizens a trial by jury -- a right safeguarded in the Seventh Amendment, no less -- in damages lawsuits against the federal government.  Courts have reasoned that the federal government is not required to waive its sovereign immunity for such lawsuits, so the federal government may attach the condition of prohibiting trial by jury.  So if this reasoning serves to remove an explicit constitutional right, why does it not also serve to remove an extra-constitutional and judicially-created right such as racial integration?

In a moral sense, the decision fails because of its implicit, racist assumption that African-Americans cannot be educated unless mixed with whites. Not long after Brown was decided, the famous author Zora Neale Hurston took stock of how the Court’s ruling affected members of her race as well as of how it tarnished the rule of law in general:

If there are not adequate Negro schools in Florida, and there is some residual, some inherent and unchangeable quality in white schools, impossible to duplicate anywhere else, then I am the first to insist that Negro children of Florida be allowed to share this boon. But if there are adequate Negro schools and prepared instructors and instruction, then there is nothing different except the presence of white people.

For this reason, I regard the ruling of the U.S. Supreme Court as insulting rather than honoring my race. Since the days of the never-to-be-sufficiently-deplored Reconstruction [of the South following the Civil War], there has been current the belief that there is no greater delight to Negroes than the physical association with whites. The doctrine of the white mare. Those familiar with the habits of mules are aware that any mule, if not restrained, will automatically follow a white mare. Dishonest mule-traders made money out of this knowledge in the old days. . . .

But what if it is contemplated to do away with the two party system and arrive at Govt by administrative decree? No questions allowed and no information given out from the administrative dept. We could get more rulings on the same subject and more far-reaching any day. It pays to weight every saving and action, however trivial as indicating a trend.

In the ruling on segregation, the unsuspecting nation might have witnessed a trial-balloon. A relatively safe one, since it is sectional and on a matter not likely to arouse other sections of the nation to support of the South. If it goes off fairly well, a precedent has been established. Govt by fiat can replace the constitution. You don’t have to credit me with too much intelligence and penetration, just so you watch carefully and think.

Meanwhile, personally, I am not delighted. I am not persuaded and elevated by the white mare technique. Negro schools in the state are in very good shape and on the improve. . . .

It is well known that I have no sympathy nor respect for the "Tragedy of color" school of thought among us, whose fountain-head is the pressure group concerned in this court ruling. I can see no tragedy in being too dark to be invited to a white school social affair. The Supreme Court would have pleased me more if they had concerned themselves about enforcing the compulsory education provisions for Negroes in the South as is done for white children. . . .

Hurston’s remarks proved prophetic, for it soon became obvious that the Court had larger designs than merely ending legally-enforced segregation in the public schools. Frustrated that families were choosing not to commingle their children when given the opportunity, the Court began forcibly integrating public schools so as to achieve the façade of racial harmony that the Court had in mind. So the Court, after having leapt away from the Constitution when issuing the Brown decision, now leapt away from Brown itself and engaged in the very brand of racial-engineering that the States had been accused of. Having donned the mantle of super-legislature, the Court (and the lower federal courts) took on political functions such as re-drawing school-district lines, ordering the busing of students far from their homes, and even usurping the power of taxation in order to support judicially-inspired school plans.

Instead of producing harmony, Brown and its progeny produced strife. Whites pulled their children from the public schools and fled urban areas in droves, while blacks were left behind in schools far worse than the ones their ancestors had attended during the days of segregation. Brown’s sad legacy is a prolonged and aggravated alienation between blacks and whites, making blacks suspicious of whites and whites resentful of blacks. If the Court had obeyed the Constitution and allowed society to progress at its own pace towards that wonderful day when the races could respect one another, then that day quite likely would have arrived much sooner.

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* Public education as we currently know it is a fairly recent phenomenon. For the majority of American history, spanning from the colonial days up through the nineteenth century, education was not viewed as a primarily governmental function. New England “reformers” such as Massachusetts politician Horace Mann promoted governmental involvement in education as a means of advancing secular thought and uniformity of curriculum, taking as their model the Prussian educational system. When we consider the “progress” of public education in America since that time – the politicization of curricula, the spiraling costs, and the degeneration of teaching standards – it is more accurate to characterize public education as a legislative curse than a blessing.

The Veil Of Impartiality Drops -- Some Rights Are More Equal Than Others, And The Supreme Court Goes Berserk

The consistent (although dubious) application of a broad concept of “due process” and “equal protection” review to state laws soon gave way to the practice of selecting some rights over others as more worthy of the Court’s protection. In particular, the Court began to draw the artificial distinction between “economic” and “non-economic” rights that the Court had never before perceived, disfavoring “economic” rights such as property and freedom of contract. Such differentiation revealed the Court members’ personal agenda, whereas the older Court could at least make the claim that it had acted to protect all forms of freedom.

This relegation of “economic rights” came about in response to the Great Depression, which took the nation by storm in October of 1929. Shortly after the Great Depression began, Franklin Roosevelt rode to the presidency on the steam of his promise to brandish the power of government as never before in order to alleviate people’s suffering. The Supreme Court, however, still adhered to a strong and consistent vision of rights, as well as to a reverence for the Constitution’s limitations on federal power. Roosevelt locked horns with the Court when the Court began striking down much of his vaunted New Deal legislation; in 1937, Roosevelt attempted to “pack” the Court by proposing legislation that would have allowed him to appoint additional members beyond the nine already serving. Although Roosevelt’s plan ultimately failed, most of the Court members wanted to avoid a political showdown and therefore began to “massage” their opinions, not only on the limits on federal power (to be addressed later), but also on the power of the States vis-à-vis the Fourteenth Amendment.

A watershed 1937 decision showcased the Court’s new hostility to intervening in the States’ economic regulations, with the Court upholding a minimum-wage law for women despite having previously stricken down such a law as an invasion of women’s freedom of contract. As the Court rationalized:

[T]he violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract.

Continuing with this same rationale even after the Great Depression had ended, the Court handed down a 1955 decision loudly proclaiming that the Court had returned to the hands-off posture of the old 1872 Court – at least with regard to “economic rights,” that is: 

The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.

Despite this apparently renewed deference to the States, the Court went hyperactive in the realm of “non-economic” rights and began striking down state laws with such unpredictability and fervor as to confirm that the Court had ceased functioning as a “court” and had instead become the supreme legislature. Armed with a steadily-evolving arsenal of legalisms, the Court took a wrecking ball to both the Constitution and American society. 

The upcoming posts will take a look at what the Court has unleashed upon us in terms of race, religion, freedom of speech, abortion, sex, gender, crime, and immigration.   

The Rule Of Judges Begins – Centralizing Power In The Name Of Promoting Rights

It goes without saying that the members of the Supreme Court today do not share the scruples of their 1872 forebears when they refused to stretch the Fourteenth Amendment beyond its narrow function, and it certainly did not take long after 1872 for the Court to yield to the irresistible temptation to overturn unpopular (albeit perfectly constitutional) state laws.

Towards the end of the nineteenth century and the beginning of the twentieth, a new generation of judges arrived on the scene who had little or no memory of what the Union had been like before the Civil War. America was entering the “Gilded Age,” when everyone worshipped material progress; Social Darwinism was the intellectual fad of the moment; and large numbers of people began moving from farms to the cities. Unsurprisingly, the Supreme Court absorbed this zeitgeist and began to strike down contrary state laws by invoking the portion of the Fourteenth Amendment prohibiting States from depriving their citizens of “due process of law.” One of the most notorious examples is the 1905 decision in Lochner v. New York. In that case, the State of New York had passed a maximum hours provision prohibiting bakers from employing their workers for more than ten hours per day or sixty hours per week. Such a regulation was hardly as oppressive as the blanket deprivation of livelihoods at issue in the Slaughterhouse Cases of 1872, and it certainly fell within the presumptive power of the State of New York (owing to the absence of a specific constitutional prohibition). Nevertheless, the Court struck down the regulation on the grounds that it robbed the bakers of their liberty of contract and their property without due process of law:

The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution. . . . Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right.

Although the Court’s rationale was indeed compelling in terms of logic, ethics, and even economics (modern minds may disagree), it usurped the right of the state legislatures to consider such factors when creating laws, and it certainly extended the Fourteenth Amendment beyond its original purpose. The Court, which had previously acknowledged that the Fourteenth Amendment was meant to protect African-Americans, had now used the Amendment to annul a generic workplace regulation of a sort that the States had always enjoyed the presumptive ability to enact.

To the credit of the Gilded-Age Court, its jurisprudence was consistently interventionist, as its broad definition of “due process” worked to strike down state laws that curtailed all manner of rights, whether “economic” or “non-economic.” In this sense, the Court at least retained an appearance of impartiality. For example, in 1925 the Court struck down a Nebraska law criminalizing the teaching of languages other than English to schoolchildren. This law, which sought to protect against the perceived threat of foreign influences, was clearly “non-economic” in nature. Notwithstanding, the Supreme Court struck it down and offered a broad, robust definition of liberty that strongly limited the discretion of the States:

While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. . . . Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.

Also during this period the Court displayed enthusiasm for expanding the “equal protection” clause of the Fourteenth Amendment beyond its scope of protecting African-Americans by striking down state laws and activities that differentiated among citizens regardless of whether those citizens were African-American or not. Again, to the Court’s credit, it applied its reasoning in a straightforward manner by questioning only those measures that explicitly singled out certain citizens for negative treatment, rather than questioning neutral laws that simply produced disparate effects (which virtually all laws do). 

Obviously, though, the pendulum had swung to the opposite side of the spectrum from where it started. In 1872, the Court had warned of the danger of overstepping its bounds to become a “perpetual censor” of state legislation; now, however, the Court relished its godlike role as censor and proudly announced its expansive, supervisory mission. That self-appointed mission grew more expansive, and more renegade, as the Court began pillaging its way across the mid to late twentieth century.

The Fourteenth Amendment’s Main Purpose – Protecting Ex-Slaves And Their Descendants

What makes the Supreme Court's ritualistic abuse of the States so outrageous – beyond the folly of centralizing power in a single source – is the fact that the Fourteenth Amendment was not intended to create such a result. In the 1872 Slaughterhouse Cases, when the Supreme Court first had the opportunity to apply the Fourteenth Amendment to abolish an unpopular state law, the Court rightly refused to do so because it intuited the drastic step this would represent.

Sparking the controversy was a Louisiana law banning the practice of slaughtering in the city limits of New Orleans. At the stroke of a pen, an entire group of people lost their livelihoods. But the law also established a public corporation under whose auspices (and rules) the slaughterers could continue to practice their trade. Understandably upset, the slaughterers claimed that the law embodied a throwback to feudalism and that they had been transformed into serfs overnight. Making use of the three principal clauses of Section 1 of the new Fourteenth Amendment, the slaughterers challenged the law by arguing that Louisiana had violated their privileges and immunities; that Louisiana had deprived them of their liberty and property without due process of law; and that Louisiana had denied them equal protection of law. But the Supreme Court rejected this challenge, explaining how striking down a state law on these grounds would effectively invert the constitutional order and funnel inordinate power to the federal government:

Was it the purpose of the fourteenth amendment . . . to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? . . . [S]uch a construction . . . would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. . . . [T]hese consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; . . . the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character . . . .

The Court went on to explain that the Fourteenth Amendment had a very narrow goal: to protect the ex-slaves (African-Americans) in order to make sure that they were not deprived of their civil rights:

We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.

The Fourteenth Amendment was not designed for every Tom, Dick, and Harry who might be disgruntled about his State’s legislation. Instead of creating new rights, the Fourteenth Amendment extended pre-existing rights of citizenship to African-Americans, such as the right to move about freely; to earn a living of one’s choosing; to enter into contracts; to own property; to sue; and to engage in any of the lawful activities enjoyed by members of the white race.

There is never a shortage of citizens, black or white, who resent the machinations of their State’s legislature. If the Fourteenth Amendment gave such persons a weapon to disrupt their State’s political process by constantly resorting to federal intercession, it would (and did) destroy the federal nature of our system.

Many insist that the Fourteenth Amendment’s language cannot be limited to its historical context of protecting African-Americans, as done by the Supreme Court in the Slaughterhouse Cases of 1872. This argument fails for several reasons:

· First, judicial decisions rendered so soon after the enactment of the measure under review are entitled to deference. For example, the Supreme Court’s power of judicial review is not spelled out anywhere in the Constitution, yet John Marshall’s controversial 1803 opinion in Marbury v. Madison establishing judicial review is an article of faith in modern jurisprudence because the decision post-dated the Constitution’s adoption by a mere fifteen years. There is no discernible reason that the Supreme Court’s 1872 decision regarding an amendment only four years old should not receive equal respect.

· Second, the Supreme Court has displayed respect for the historical context of the Thirteenth Amendment, which abolishes “involuntary servitude” except upon conviction of a crime. The plain language of the Thirteenth Amendment would ban any number of practices such as the draft, jury duty, and compulsory education; however, the courts have persistently refused to apply the Thirteenth Amendment in such a broad manner, choosing instead to confine the amendment’s scope to its historical context of chattel slavery. If the Thirteenth Amendment is confined to its historical context, why is the Fourteenth Amendment not similarly confined?

· Third, the modern Court still relies on the Slaughterhouse Cases as a basis for refusing to enforce the “privileges or immunities” clause of Section 1 of the Fourteenth Amendment. It makes no sense to obey the Slaughterhouse Cases as to this single clause of Section 1 but not as to the other clauses, since the decision offered the same rationale for circumscribing the scope of all three clauses. This inconsistent, self-serving deference for precedent typifies much of the modern Court’s behavior.

· Fourth, the Fourteenth Amendment was never constitutionally approved. Southern States were deprived of their votes without their consent (specifically forbidden by Article V of the Constitution), despite the fact that they had already voted on the Thirteenth Amendment. Even the non-Southern States that did vote on the Fourteenth Amendment failed to reach the required three-fourths majority approval. Notwithstanding this absence of constitutional process, the federal government implemented the amendment anyway. In this sense, the Fourteenth Amendment truly epitomizes the Civil War’s results, for it finds its authority not in law, but in raw force.

· Last, and certainly not least, is that the madcap usurpations of state power indulged in by the Supreme Court during the twentieth century (illustrated in my upcoming posts) cheapen African-Americans’ rights as full citizens by equating them with the “rights” of persons such as pornographers, slanderers, and illegal aliens.

Good For Eduardo Saverin

The co-founder of Facebook is renouncing his U.S. citizenship and taking his fortune with him to greener pastures.  While many are attempting to shame him, they should feel ashamed of themselves for alienating him and others like him.  America now punishes excellence and rewards mediocrity in countless ways; the ponderous weight of taxes, spending, and hyper-regulation has choked off what once made America a shining city on a hill.  The paper barriers in our Constitution already have been shredded, so fight or flight are the only options left.  Eduardo chose the peaceful option, and it makes no difference whether his motives are merely pecuniary.  As the great jurist Learned Hand once observed: 

Anyone may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one’s taxes.

Thieving imps in the Senate are proposing an "Ex-Patriot Act" to penalize such flight, forgetting that love of government is entirely distinct from (and hostile to) love of country.  A truly great country attracts people; only a diminished and degraded country punishes people for leaving.  Congratulations, America.  You are linking arms with the former East Germany.  

EDIT:

While Eduardo Saverin is highly intelligent, Mark Zuckerberg is a blithering idiot.  He'll get an education soon enough.

OCD? No, just honor

People often joke that I have OCD because I follow certain patterns regardless of consequences.  For example, I once made a New Year's resolution to exercise five days a week.  My first day in the gym, a buddy of mine who was a gym rat laughed and said, "Yeah, I wonder how long that'll last."  Seventeen years later I'm still at it and in great shape, though I'm pretty sure he is not.  Neither rain, sleet, snow, nor fatigue after a long day's work have stopped me.  Many times I have gone to the gym after attending a client meeting and having a few drinks, when working out was the last thing I felt like doing. Granted, there are occasions when I indeed have no choice but to miss a workout, but to the extent I have a choice I follow through. 

I do this not because I will fall to pieces if I don't, and not even because I love to work out -- the truth is I often despise it.  I do it because it is good for me and because I made a promise to do it.  That's the part most people today fail to grasp, i.e., following through on a promise even when it becomes a pain in the ass.  When I promise to do something, it gets done. That is a defining quality of being a man; the disappearance of that quality coincides with the degradation of many noble institutions America once had.  Marriages, the rule of law, agreements made and kept on a handshake . . . take your pick.  Pursuing an ideal no longer resonates with a people who worship at the altar of pleasure and ease.  For them, the sight of honor evokes only laughter.

It wouldn't bother me so much except for the fact that these jackals have institutionalized their degradation to make war on people like me to extract our blood, sweat, and tears.  We the thrifty and virtuous are now compelled to subsidize the profligate and vicious, an attack against honor if their ever was one.       

Trusting One Government To Save Us From Many – The Renegade Judiciary’s Abuse Of The Fourteenth Amendment

The endless claptrap over "civil rights" and the ridiculous activities this phrase supposedly encompasses has motivated me to re-publish my analysis of the Fourteenth Amendment, where much of this insanity originates.  If you're going to hold forth on the Constitution, you should at least acquaint yourselves with how the judiciary has mangled it.

My experience in public concerns and the observation of a life somewhat advanced confirm the opinions long since imbibed by me, that the destruction of our state governments or the annihilation of their control over the local concerns of the people would lead directly to revolution and anarchy, and finally to despotism and military domination. In proportion, therefore, as the general government encroaches upon the rights of the states, in the same proportion does it impair its own power and detract from its ability to fulfill the purposes of its creation. ~ Andrew Jackson, Second Inaugural Address, March 4, 1833
 

An independent judiciary, insulated from the ever-changing winds of politics, is vital to any society governed by the rule of law. The adjudication of cases and controversies in which the rights of citizens are at stake must remain beyond the sphere of politics, for if Lady Justice were to lose her blindfold then the scales would forever tip in favor of the powerful. Article III of the Constitution created just such an independent judiciary in the Supreme Court (and in such lower federal courts as Congress may wish to establish), whose judges receive lifetime appointments and whose compensation can never decrease during their tenure. But the glory of the independent judiciary has given way to the horror of an independent legislature, something so sinister that it motivated the American Revolution itself. Like the British Parliament before it, the Supreme Court today issues political pronouncements overruling the deliberations of America’s elected representatives. Nowhere has this abuse been more apparent than with regard to the States, who under the Constitution retained the great corpus of power to legislate on the health, safety, and morals of their respective citizens. For the past century or so, the Court has steadily transferred that power to itself and to the other branches of the federal government, a phenomenon that has its roots in the aftermath of our Civil War.

The American Civil War of 1861 - 1865 has rightly been labeled as the crossroads of our national existence, the conflict that ended slavery and transformed the Union from a plural alliance of States into a singular nation.* Not only did the war make an indelible impression on our collective psyche, but it also left an imprint on the law in the form of three constitutional amendments. As professor George Fletcher of Columbia University Law School has observed:**

At the heart of this post-bellum legal order lay the Reconstruction Amendments – the Thirteenth, Fourteenth, and Fifteenth Amendments, ratified in the years 1865 to 1870. The principles of this new legal regime are so radically different from our original Constitution, drafted in 1787, that they deserve to be recognized as a second American constitution.

The Thirteenth Amendment ended slavery (one of the few happy results of the Civil War), and the Fifteenth Amendment prohibited States and the federal government from denying citizens the right to vote on the basis of race. The Fourteenth Amendment, however, has had a far more dramatic impact. What makes the Fourteenth Amendment special is not its purpose, which is fairly humble. Rather, the Fourteenth Amendment’s significance comes about as a result of the Supreme Court’s century-long crusade to use it as a means for scouring the States of their police power and thereby undermining the Founders’ blueprint of decentralized and dispersed political authority.

Most important among the Fourteenth Amendment’s provisions is the following: 

SECTION 1 . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The key to appreciating the gravity of this language is noticing that it signals a new prohibition on the States. Remember that the original Constitution listed very few such prohibitions. Unlike those earlier and concise prohibitions, though, this new language appears rather vague, and it’s precisely this vagueness that has provided a pretext for the Supreme Court to arrogate to itself the titanic ability to review state laws and to strike down at will those with which it disagrees. Such boundless federal oversight of the States flies in the face of the Founders’ plan, pursuant to which States enjoyed the presumptive ability to craft rules and regulations for their citizens. Now the Supreme Court presumes to act as a super-legislature that can second-guess the moral, political, and philosophical decisions of the state legislatures, thereby turning the constitutional order on its head. Under the Constitution of the Founders, the States decided which powers the federal government would have; now, it is the federal government that decides which powers the state governments will have.

TO BE CONTINUED 

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* A significant body of thought holds that the Civil War alone signaled the destruction of the constitutional order, which had been based on the voluntary membership of States.  Since the Southern States remained in the Union only against their will, the argument goes, the Union of the Founders ceased to exist upon Lee’s surrender at Appomattox in 1865.  For present purposes I am stipulating that the Civil War was fully justified, but that it nevertheless spawned a series of consequences that ultimately had the effect of inverting and thereby destroying the constitutional order.  The alternative viewpoint, which deserves serious consideration, will be addressed in a later entry.

**Professor Fletcher’s attitudes, which mirror those of the vast majority of his peers, are instructive because of their celebration of how the limited government created by the Founders has been buried in the sands of history.  This demonstrates how no serious debate exists as to the undoing of the Constitution; rather, the debate centers on whether we should mourn the Constitution’s death.

"Discretionary" Federal Spending

The rest of the federal budget – roughly $800 billion [in 2005] – consists of annually approved spending that does not rise to the dubious distinction of “entitlements.” A slim majority of this “discretionary spending” goes to national defense, which to its credit is authorized by the Constitution. What remains, however, is a train of budgetary abuses aimed at micromanaging and subsidizing such things as speed limits, minimum drinking ages, medical care, medical research, the arts, farming, housing, retirement pensions, child-rearing, the content and manner of political campaigning, educational standards, gender quotas in college athletics, unemployment-insurance criteria, state and local policing, union rules, stem-cell research, breast cancer, AIDS, school lunches, abstinence instruction, and even mental health screenings.* Any States that entertain setting their own standards in these fields run the risk of losing funding, so the States toe the federal line like the docile vassals they have been reduced to. Embarrassing enough, those States (mostly Southern) that are likeliest to raise philosophical objections to such profligate federal spending are the largest recipients thereof, as this buys their silence.**

Discretionary spending has also corrupted America’s intellectual life. Universities receive incredible sums of money from the federal government in the form of research grants, scholarships, and similar redistributions of wealth. As a result, the academic class has become thoroughly statist and has lost any vestige of intellectual integrity it may have once possessed. Year after year the universities churn out bland publications and even blander graduates operating under the same unspoken assumption – that it is fitting and proper for government to reshape the world. Anyone entertaining an opposite viewpoint would be hard-pressed to find a more hostile environment than the modern American university, the supposed bastion of “diversity” that, in truth, prizes conformity above all else. A perfect example of the morass that the universities have fallen into is the recent debate concerning military recruiters, whom some of our “elite” institutions wish to keep away from their students. This refusal to cooperate with the federal government appears rather principled at first, until one learns that the universities simultaneously insist that the federal government may not retaliate by curtailing funding. As with Social Security, we see again the base notion of a “right” to receive other people’s money, when in fact it was wrong and illegal to transfer that money in the first place. Even worse, the universities have stooped so low as to cloak their funding addiction with the First Amendment, arguing that in today’s America it is impossible to separate individual freedom from governmental action. This is the quintessence of statism – that only the state can set us free.

Beyond the moribund realm of modern academia, discretionary spending has infiltrated so many aspects of everyday life that Americans now adhere to the syllogism that nothing worthwhile can be accomplished unless the federal government participates. And again, anyone who suggests otherwise provokes vituperation: if you oppose federal funding for stem-cell research, you are thought to oppose stem-cell research; if you oppose federal funding for breast-cancer research, you are thought to oppose breast-cancer research; and if you oppose federal funding for AIDS research, you are thought to be the devil incarnate. Politicians who shower the Treasury’s money on the most recent or faddish undertakings are labeled as “compassionate” or “caring,” while politicians who voice doubts are treated as cruelly opposing the endeavor itself. A prime example of this corrupted thinking manifested itself in the context of the 2004 earthquake beneath the Indian Ocean, a literally Earth-shaking event that spawned tsunamis that wiped out thousands of human lives plus vast infrastructure. Americans showed that they are quite capable of acting virtuously on their own, for within two weeks of the disaster they had voluntarily and heroically contributed over $200 million, and the relief agencies soon declared that no more private donations were needed. Yet when the federal government directed taxpayer dollars towards the relief effort, almost no one stood up to criticize such an illegal misuse of funds. The government has no place using confiscated wealth for such purposes, and by doing so the government again acted as a thief rather than as an agent of lawful authority. Virtue cannot be compelled, and monies obtained by compulsion likewise cannot be spent “virtuously.”

Most of what goes on in our daily lives – the triumphs as well as the tragedies – are none of the federal government’s business. Where does Washington, D.C. get off deciding whether to teach birth-control or abstinence to schoolchildren? Whether breast cancer deserves more attention than prostate cancer? Whether the local police department needs more officers? Or whether colleges must have a proportionate number of male and female athletes? By purchasing its way into Americans’ hearts, the federal government has once again steamrolled decentralized, local rule in favor of centralized and monopolistic control, thereby prolonging inept national policies while strangling more community-convenient initiatives in the cradle. Imagine how much more prosperity we would enjoy if the incredible sums of wealth illegally re-distributed were left in our own hands. What unknown technologies, medicines, and labor-saving devices have been postponed or lost forever because of the federal government’s insatiable appetite for control? What misery awaits the coming generations because the government has buried them under a crushing debt even before their birth? Each individual occupies the best position to determine what makes him happy, so happiness prospers when individuals control their own wealth in the pursuit of their own happiness. When government arrogantly asserts that it knows best how to make you happy, and government takes your wealth in order to implement its vision, then the inevitable result is less happiness and less prosperity.

In an ironic twist to this unconstitutional spending saga, former Senator Robert Byrd of West Virginia once proposed that federal funds go towards teaching schoolchildren about the Constitution, a gesture resembling beating schoolchildren with crowbars in order to teach them the virtues of pacifism. A far better way of reviving the Constitution’s principles is to eliminate federal spending on public schools and on all other projects beyond the federal government’s purview, to return those billions of dollars to the States and their citizens so that local needs are truly met, and to demand that the federal government focus on those narrow objectives that the Constitution dedicates to it – such as the security of our borders and the protection of our lives (two missions that the federal government has spectacularly failed at in recent years). 

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* Recent federal appropriations bills have sought to direct funds to the identification and treatment of schoolchildren’s “mental illnesses” such as attention deficit disorder (ADD), presumably to make the children more susceptible to government-approved lesson plans.

** Poetic justice emerged from George W. Bush’s 2004 electoral victory when certain “liberal” commentators bitterly recommended that the North secede from the South, since the South was receiving the lion’s share of the patronage that Northerners have for so long insisted that the federal government may distribute. Apparently the Northerners believed that upon releasing the genie from the bottle, the genie would do the bidding of only they who opened it.

The Plight Of The Introvert

While at a party last night, I was having a fun conversation with a woman when I casually mentioned that I'm an introvert.  She looked perplexed at first but then responded with full confidence, "You're not an introvert."  It was not the time or place for me to dispel popular misconceptions over what being an introvert means, particularly the myth that introverts are shy.  But now is a good time because I am in my "introvert space" and re-charging my batteries before venturing out again this evening.

Introverts often do appear quiet, but this is because there is a symphony playing in our heads -- we do not yearn for stimulation from without because we already have an abundance of it within.  Any interaction with the outside world means multitasking, whether it's conversing with other people or even pausing to notice our surroundings.  I am not "plugged into" my environment and, in fact, am usually oblivious to it unless safety or social convention demands my extra energy.  I do not feel an urge to decorate my office or my home much because I do not pay attention to these trifles.  And it's true, I rarely feel a need to engage other people unless there is some tangible goal to be achieved by doing so.  In a strange way, this makes me feel an intimate understanding of my Protestant ancestors, who razed pompous religious iconography and architecture because it focused man's attention on the material, external world rather than the ideal, internal world (where God resides).  I can't speak for other introverts, but in my case the sounds, images, and ideas ricocheting in my head are so intense and real that I begin dreaming almost immediately upon closing my eyes for a nap, usually when sitting in an airplane or in a car passenger seat.  I don't even need to wait for the REM stage; the action begins right away.  On top of that, I have been a "lucid" dreamer as long as I can remember, meaning that I often realize that I am dreaming and can have fun with it. 

None of this intense introversion keeps me from socializing or noticing my surroundings when I choose to; as a matter of fact, it is precisely because I must make a conscious choice to do those things that I excel at them.  I can work a room at a party, ace a job interview, give speeches to packed auditoriums, and perceive how traffic is behaving all around me as I drive.  For example, most drivers automatically lurch for the nearest open space without pausing to see how traffic ahead is evolving, which often leaves them stuck in a slower lane and zipping back and forth in epimethean frenzy.  I, on the other hand, get the complete lay of the land before making a decision where to go, and as a result I get there much faster.

But there is a price to pay for such excellence, and it is depletion.  Extroverts really just don't get how taxing and even painful it can be for an introvert to be as outgoing as our modern, shallow society demands.  Introverts get flack for not being able to keep up this persona all the time, so we have to cope with fatigue as well as scorn.

Properly understood, introversion means having inner mental energy, so we introverts give off and lose this energy when interacting with the world.  Extroverts, on the other hand, lack inner mental energy and suck it away from their surroundings.  Introverts are like internal combustion engines that run low on fuel and need to be serviced; extroverts are like solar panels or windmills that lie dormant unless actuated from without.  Otherwise stated:  introverts are givers, but extroverts are takers. 

The world needs both types.  Unfortunately, modern society craves the miraculous fruits of introversion while despising introverts themselves, and the ascendance of extroversion parallels the ascendance of the taker mentality.  Introverts are told that we need to get with the program and be like extroverts, but the extroverts' world would collapse if we did.  And it just so happens that we already are far better at being like you when necessary than you could ever be like us -- we can fake the effervescence and superficiality of extroversion for various lengths of time, but you cannot hope to fake the reflectiveness and creativity of introversion for a second.

Imagine if things were reversed and introverts demanded that extroverts stop chatting at work or stay at home and read more often.  Imagine further that extroverts' inability to do such things were pathologized and framed as a "problem" to work out on pain of losing your job, being denied tenure, or being abandoned by a spouse.  Pretty horrific, right?  That is our reality, and we're justifiably pissed off about it.

Obama Embraces Gay Marriage

Bully for him.  The controversy, however, is none of his business as president.  Family law and similar matters of public health, safety, and morals are part of the broad "police" power retained by the States via the Tenth Amendment -- the federal government may do only the paltry few things the States entrusted to it, and everything else stays at home, including marriage.

As I have said before, I have no problem if the people of a given State approve gay marriage.  By the same token, the people of a given State may choose not to approve gay marriage, just as North Carolina and several others have done.  To dispute this is to attack the Constitution and millennia of human experience.

I should pause to point out that there is absolutely nothing to prevent a gay couple from marrying.  Send out the invitations, secure the overpriced venue, hire a photographer, use an officiant from the cafeteria of churches America now has, gorge yourselves on food and drink, dance badly, and pronounce yourselves husband-husband or wife-wife or whatever else.  Nobody will stop you.  What's at stake here is something quite different, i.e., whether a State government will bless the union and place it on par with a heterosexual one.  If you're going to ask for public approval, it follows that the public may withhold such approval.  That's another self-evident fact that many people who dislike reality have trouble accepting.        

"Mandatory" Federal Spending

[Keep in mind that I wrote these passages about federal spending before the economic meltdown.]

Two-thirds of the [2005] federal budget – roughly $1.5 trillion – is devoted to “mandatory spending,” a label commemorating the fact that these programs are permanently embedded in the federal statutes and do not require recurring approval. Most prominent among these are Social Security, Medicare, and Medicaid – programs that redistribute wealth from one portion of Americans to another.*

This “mandatory spending” is more aptly perceived as “forbidden spending,” not only because it lacks constitutional authorization, but even more fundamentally because the forcible transfer of wealth from some private citizens to others represents the worst type of democratic invasion of individual rights. Even the States, whom the Constitution does not forbid from this type of activity, historically characterized the redistribution of wealth as an odious and illegitimate practice. As Thomas Jefferson explained it:

To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.

More disconcerting is the fact that many Americans today believe that they have a right to receive this stolen wealth, that they enjoy a so-called entitlement to extract the fruit of their neighbors’ toil, a mindset comparable to that of the slaver and unworthy of a people calling themselves free. Modern developments in the law have encouraged this sick notion by crafting the concept of the “new property.” Whereas the “old property” dealt with one’s rights to goods and services voluntarily exchanged with another person, the “new property” deals with one’s supposed right to receive streams of income from the public purse. For this reason it is nearly impossible to terminate public spending, since the Supreme Court in its infinite wisdom has determined that many of the recipients thereof have a constitutional “due process” right to other people’s money and cannot be deprived of it until a full hearing is held.

This ritualized robbery will end regardless of whether the government wants it to or not. Medicare and Social Security bear an unfunded liability in the neighborhood of $45 trillion, and as Americans continue to live longer and eat larger, they will consume an ever increasing share of the federal budget until there remains nothing left to steal. Current officeholders have no vested interest in sacrificing present political goals for future benefits, so in the face of this gathering threat, they suicidally propose to expand “entitlements” to such things as prescription benefits or “universal health care.” As French King Louis XV remarked during the generation preceding his own country’s revolution, “it will last my time, and after me, the deluge.” Our “entitlement” gluttony will also bring about a deluge, and perhaps sooner than anyone would like to contemplate.

The Best Confronts The Merely Better

My recent post explaining how "the best and the brightest" are anything but has found an apotheosis, namely the courageous speech by Robert Wenzel to the New York Federal Reserve (the heart of darkness).  Wenzel speaks the truth about the terrible chaos and harm the Federal Reserve has inflicted on America since its founding 99 years ago, encouraging his audience to do the right thing and simply leave the building forever.  The audience has no idea what he's talking about and displays abject ignorance of economics, for the audience consists of middlebrows whose only interest in the mind is using it serve power rather than truth.

Wenzel is an intellectual and represents the real best and brightest; his audience is a den of thieves far less intelligent than he, but also more intelligent than the unwashed masses, so the thievery will continue unabated -- at least until the collapse, at which point men such as Wenzel will do the hard work of re-building.  True men of the mind build civilizations but cannot stop them from collapsing.   

Federal Spending

I wrote about this subject in my first book roughly six years ago, but it has grabbed far more attention lately because of the economic meltdown and the "War On Women," i.e., the audacity to resist forcible subsidy of private sexual choices. These and other subsidies are themselves a war on society, and resistance is crucial.

The Power To Spend Our Money

One of the most sacred duties that a holder of public office can undertake is the disbursement of the people’s money. Such money is collected through the awesome power of taxation, a power which in any other context would be labeled as theft. It is often said that taxes are the price we pay for civilization; however, when government begins spending more than it must – spending on initiatives not encompassed within its solemn duties – then de-civilization inevitably follows. For what else can it be called but barbarism when some take by force the money of others for purposes not authorized by law and not necessary for the preservation of safety and order?

Recall that President Madison refused to sign a bill that would have disbursed money from the Treasury for “internal improvements” because such an expenditure was nowhere contemplated within the four corners of Article I, Section 8 of the Constitution outlining Congress’s powers. Some of Madison’s successors as president took time on the festive day of their inauguration to draw attention to this sanctity of the public purse, although none in recent memory has seen fit to do so:

Ours was intended to be plain and frugal government, and I shall regard it to be my duty to recommend to Congress and, as far as the executive is concerned, to enforce by all the means within my power the strictest economy in the expenditure of the public money which may be compatible with the public interests. ~ James K. Polk, Presidential Inaugural Address, March 4, 1845

It is beyond all question the true principle that no more revenue ought to be collected from the people than the amount necessary to defray the expenses of a wise, economical, and efficient administration to the government. ~ James Buchanan, Presidential Inaugural Address, March 4, 1857

It is the duty of those serving the people in public place to closely limit public expenditures to the actual needs of the government economically administered, because this bounds the right of the government to exact tribute from the earnings of labor or the property of the citizen, and because public extravagance begets extravagance among the people. ~ Grover Cleveland, Presidential Inaugural Address, March 4, 1885

While a treasury surplus is not the greatest evil, it is a serious evil. Our revenue should be ample to meet the ordinary annual demands upon our treasury, with a sufficient margin for those extraordinary but scarcely less imperative demands which arise now and then. Expenditure should always be made with economy and only upon public necessity. Wastefulness, profligacy, or favoritism in public expenditures is criminal. ~ Benjamin Harrison, Presidential Inaugural Address, March 4, 1889

The severest economy must be observed in all public expenditures, and extravagance stopped wherever it is found, and prevented wherever in the future it may be developed. If the revenues are to remain as now, the only relief that can come must be from decreased expenditures. ~ William McKinley, Presidential Inaugural Address, March 4, 1897

The collection of any taxes which are not absolutely required, which do not beyond reasonable doubt contribute to the public welfare, is only a species of public larceny. Under this Republic the rewards of industry belong to those who earn them. ~ Calvin Coolidge, Presidential Inaugural Address, March 4, 1925

Such devotion to confining federal spending to its constitutional objectives died a final, unceremonious death in 1937 at the hands of the Supreme Court, which in another fit of obeisance to Franklin Roosevelt refused to find fault with the newly christened Social Security Act in the decision of Helvering v. Davis. Suddenly, the Court had decreed that Congress could spend money in a manner entirely divorced from Congress’s enumerated powers, and that Congress could decide for itself what constituted the “general welfare” of America when it came to funneling funds out of the Treasury. As a result of the Court’s capitulation, the Congress received not merely a blank check to spend money as it chose, but also a new tool for exercising the type of “police power” that the Founders specifically had sought to reserve to the States. As one of the dissenting Justices predicted:

That portion of the Social Security legislation here under consideration, I think, exceeds the power granted to Congress. It unduly interferes with the orderly government of the state by her own people and otherwise offends the Federal Constitution. . . .

Apparently the states remained really free to exercise governmental powers, not delegated or prohibited, without interference by the federal government through threats of punitive measures or offers of seductive favors. Unfortunately, the decision just announced opens the way for practical annihilation of this theory; and no cloud of words or ostentatious parade of irrelevant statistics should be permitted to obscure that fact. . . .

No defense is offered for the legislation under review upon the basis of emergency. The hypothesis is that hereafter it will continuously benefit unemployed members of a class. Forever, so far as we can see, the states are expected to function under federal direction concerning an internal matter. By the sanction of this adventure, the door is open for progressive inauguration of others of like kind under which it can hardly be expected that the states will retain genuine independence of action. And without independent states a Federal Union as contemplated by the Constitution becomes impossible. . . .

Ordinarily, I must think, a denial that the challenged action of Congress and what has been done under it amount to coercion and impair freedom of government by the people of the state would be regarded as contrary to practical experience. Unquestionably our federate plan of government confronts an enlarged peril.

Congress would use its now-boundless spending power to bribe States and individuals into accepting federal rules that the federal government had no constitutional competency to create, thereby projecting federal influence over even more aspects of our lives than possible under the tortured readings of the interstate commerce clause. The federal government, having siphoned away much of the citizens’ money by means of taxation, now could offer to return some of that money for the price of obedience. And of course the Supreme Court dutifully approved of this medieval system of tribute, holding that the federal government could thus commandeer the States indirectly despite lacking the power to commandeer them directly.

Congress has never looked back, and today [in 2005] we have a government that spends in excess of $2 trillion each year on a smorgasbord of patronage and largesse that lies completely beyond the Constitution’s scope. Such expenditures constitute almost 20 percent of America’s gross domestic product (one hundred years ago it was just 3 percent). It is now impossible in “mainstream” politics to suggest a mere freeze in annual spending levels, let alone real cuts. Even a self-described “conservative” such as George W. Bush  has presided over the largest explosion of the budget deficit ever. In the absence of spending cuts, the only alternatives for coping with problems such as the deficit and the national debt are 1) raising taxes; and/or 2) printing more money. (Borrowing merely postpones the day of reckoning, as debt still must be repaid with taxes or inflated currency.)  Both of these alternatives decrease Americans’ wealth: the first through a direct taking of our money, and the second through the devaluation of the money remaining in our pockets. We now occupy the psychedelic political landscape where cutting taxes to allow Americans to keep more of their money is labeled as “expensive” or “greedy,” since wealth is no longer perceived as belonging to the individual but rather to the government. As deficit and debt continue to mount, the government will continue to push for higher taxation and inflation, and we will continue having to work harder just to maintain our standard of living.