Bill Ayers

I recently saw a Foxnews interview with the SDS - Weathermen - revolutionary William Ayers.   

Mr. Ayers claimed that he was not with any of those groups when they were actually killing people.  He only wanted to blow up things - like the pentagon- as part of his antiwar effort.  

He is a very skilled user of words and avoider of any responsibility for anything. His guys "killed" people (American civilians).  Whereas the American government "murdered people" and engaged in "genocide".

The reason that I bring this up here is because I was quite disappointed that Fox did not ask him about the following disparity:

What is the basis of your authority to decide to take the actions you took vis-a-vis the authority of the US Government to take the actions that it took?  

The government had that authority vested in it by 200,000,000 people and from 200-1000 years of history.  

Ayers group was apparently recently self anointed.

The fact is that what Ayers advocated and advocates is anarchy.  If you oppose something - blow it up?  If you disagree with the government - blow it up?  Because he was really-really against the war and his philosophy is apparently:  If it feels good - do it.

But by that time history had presented a well established and clearly moral way to oppose the government in a democracy. According to Wikipedia the earliest germ is in Sophocles' Antigone, you can follow it in Shelley and Thoreau, and see it blossom in Gandhi and King.  It is the idea of civil disobedience.  You get in the street.  You put yourself at risk to persuade people to seriously consider your point of view.  That was what eventually happened and ended the Battle of Vietnam.

But that would have put himself in the line of fire and that is not what you do when you have a really-really special gift for knowing what the world should do.

"Obama should sue right back"

I am sure that individuals ought not be allowed to sue the President.  But the House has the right of impeachment so if anyone can sue the president I suppose that the House is the one.


I saw this article and thought - "this should be funny."  It wasn't.

The author thought that gerrymandering (in the extreme at least) was undemocratic and the House is supposed to be democratic.  Therefore the Courts would have a right to require States to do this in a nonpartisan manner.

After I thought about it a minute I agreed.

 

Capital punishment

I just heard another one of those arguments against capital punishment that goes like this:  "If we are really against killing, then you have to be against capital punishment because it is a kind of killing."

It is fine with me to abolish capital punishment, but this argument is so pitiful.

1.  When we make murder illegal (and punishable at all) we are not opposing all killing, only the kind that qualifies as murder. 

To say all killing is equivalent is as foolish as saying all sex is equivalent.

2.  If X imprisons someone and is sentenced to prison himself, what do those who use the argument above say about that?  Do they say:  "If we are really against imprisonment, then you have to be against sending X to prison, too."

It is ironic that they are inconsistent about applying their consistency argument.

Argument by Motivation 2

In motivation and Voter ID (April 4th) we discussed the left's opposition to voter ID laws on the grounds that the advocates' presumed  motivation was to prevent a certain class of people from voting.  I have seen people who are well aware of the invalidity of this type of ad hominem fallacy find it so appealing that they cannot resist it. It is reasonable to consider motivation in analyzing an advocate's reason's for opposing a position, that is, for the purpose  of judging the advocate.  However, it is not, in fact a valid argument against the position itself.  Consider about any martyrdom case.  The position is to eliminate the individual and thereby shut down the person's belief, program, cause ... .   But it frequently doesn't work for example the French Revolution, Nelson Mandela, or for that matter, Jesus Christ himself.  Just because X is the motive of your action does not mean that X will be a consequence of that action.

The right likes this kind of argument too.
In this situation in fact many on the right believe that the left is opposed to voter ID laws because the left is motivated by a desire to get the votes of millions of people who are in the country illegally and do not have the right to vote.  Just as the right has some who would like to suppress voting, there are some on the left who would like to stretch the access to voting to include some who would not have traditionally qualified.  If you listen to TV discussions on this you will sometimes hear "all eligible people" should be allowed to vote and sometimes they will simply say "all people".

This is at least part of the reason for the fact that we do not have an immigration bill.  Each side assumes the worst possible motives on the part of the opposition -  i. e. they seek to demonize them.

Here the fallacy allows you to oppose the law without having to deal with what the law says.  Just oppose the presumed motives of the opponent.  As usual with ad hominem arguments it involves much less thinking.

With all  of the discussion on the other point I still did not see someone on the left say that they agreed with the statement:

If you are entitled to or have a right to something from the government you should be required to prove your eligibility for that entitlement or right.

Equal treatment doubt

After some cheering by the right the gun toten' folks down in the southwest seem to have lost their luster with some remarks about race etc.  I wish I had been in a position to ask this question before that happened.

The question that I read somewhere was: "If the protestors at Wall Street a year or so ago had brought guns with them, would they have been treated as gently as the rancher?"

Some of us doubt it.

Is this lawless?

I have heard Krauthammer complain when Obama's agents change the ACA to suit their wishes.  Is that what they are doing, just changing it as they like?  But sometimes legislation inlcludes options for revision by regulators and other administration officials.  Is that true here?  If  that were the case then it would seem like administration supporters would say that and make K back off.

I give this credibility only because we do know that Obama asked Congress to pass the dream act and they refused.  He then implemented it anyway!!

Defunding Obamacare

I think this is a quite silly idea.

Consider the general situation.  If every law that involved spending money was eligible to be "defunded", then nothing would ever be complete.  All spending bills would be open for reconsideration right up until the money was spent.

We are in serious danger of looking like fools.

Obama vs Lincoln

By   NICHOLAS QUINN ROSENKRANZ

The Obama administration announced last month via blog post that the president was unilaterally suspending ObamaCare's employer mandate—notwithstanding the clear command of the law. President Obama's comments about it on Aug. 9—claiming that "the normal thing [he] would prefer to do" is seek a "change to the law"—then added insult to constitutional injury. It also offers a sharp contrast with a different president who also suspended the law.
On April 27, 1861, President Lincoln unilaterally authorized his commanding general to suspend the writ of habeas corpus so that he could detain dangerous rebels in the early days of the Civil War. Lincoln's order was constitutionally questionable. The Constitution provides that "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
A rebellion was in progress, so suspension was permissible. But the Constitution doesn't specify who can suspend the writ in such circumstances. Since the Suspension Clause appears in Article I of the Constitution, which is predominantly about the powers of Congress, there is a strong argument that only Congress can suspend the habeas writ.
Lincoln's order was legally dubious, but what he did next showed remarkable constitutional rectitude. On July 4, 1861, he delivered a solemn message to Congress, in which he did everything possible to square his action with the Constitution. In this message, he set forth the best possible constitutional arguments that he had unilateral power to suspend the writ. These arguments may have been wrong, but they were serious, and they were presented seriously, in good faith.

Lincoln also made a powerful argument about the necessity of his action. Even if he was wrong, and only Congress had the power to suspend the writ, surely the circumstances had to be considered: Congress was in recess and the South was in open rebellion. "The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the states," Lincoln said to Congress.
Should Lincoln have refrained from suspending habeas, if doing so meant that the republic would fall? As he put it: "[A]re all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"
Lincoln also invited Congress to ratify his actions: "Whether there shall be any legislation upon the subject, and, if any, what, is submitted entirely to the better judgment of Congress." On Aug, 6, 1861, Congress did indeed retroactively ratify "all the acts, proclamations, and orders of the President . . . respecting the army and navy of the United States." And later, on March 3, 1863, Congress expressly authorized the president to suspend the writ.
Scholars have debated whether Lincoln exceeded his power by suspending the writ and whether Congress's retroactive ratification cured any constitutional infirmity. Whatever one's answer, this is a case of a president—himself a constitutional lawyer—trying, under impossible circumstances, to be as faithful to the Constitution as possible.
Contrast all of this with President Obama's announcement that he is unilaterally suspending part of the Affordable Care Act. Like Lincoln, Mr. Obama is a constitutional lawyer. And like Lincoln's action, Mr. Obama's was a unilateral executive suspension of the law. But in every other way, the president's behavior could not have been more different from Lincoln's.
First, Lincoln's action was at least arguably constitutional, while Mr. Obama's is not. The Constitution has a provision for suspending habeas. It has no general provision for executive suspension of laws. English kings used to suspend laws, but the Framers rejected that practice: The president "shall take Care that the Laws be faithfully executed."
Second, Lincoln volunteered an articulate constitutional defense of his action. Mr. Obama seemed annoyed when the New York Times dared to ask him the constitutional question. When the reporter asked whether he had consulted with lawyers about the legality of the mandate's delay, he declined to answer.
As for Republican congressmen who had the temerity to question his authority, Mr. Obama said only: "I'm not concerned about their opinions—very few of them, by the way, are lawyers, much less constitutional lawyers." Mr. Obama made no mention of Iowa Sen. Tom Harkin—a Democrat, a lawyer and one of the authors of ObamaCare—who said: "This was the law. How can they change the law?"
Third, Lincoln offered a brilliant and compelling argument about the necessity of his action, given that the republic was in imminent danger. Mr. Obama's official version of the constitutional-necessity argument was nothing more than a breezy blog post attributed to an assistant secretary for tax policy. The title? "Continuing to Implement the ACA in a Careful, Thoughtful Manner."
Fourth, and most strikingly, Lincoln promptly looked to Congress to ratify his unilateral action. Congress agreed with Lincoln, and the president welcomed and signed new legislation. President Obama says only that he wishes he could follow the same course. Last week, he said he would like to "simply call up the Speaker" of the House to request a "change to the law" that would achieve his desired delay.
In fact, as the president knows, he doesn't even need to pick up the phone: On July 17, the House of Representatives passed the Authority for Mandate Delay Act (with 229 Republicans and 35 Democrats voting in favor). This would authorize President Obama's desired suspension of the law, just as Congress ratified Lincoln's suspension of habeas corpus.
But unlike Lincoln, President Obama doesn't welcome this congressional ratification. He has called the House bill that fixes the constitutional problem he created "unnecessary," and he threatened to veto it. Why? Because the House also passed a companion bill that would delay the individual mandate too. For political reasons, the president doesn't want to be in the inconvenient position of signing one bill that would give companies a reprieve from ObamaCare, while vetoing another that would grant individuals the same delay. The Democratic-controlled Senate will quietly kill the House bill and save Mr. Obama the awkwardness of having to veto it.
Faced with military exigencies, Lincoln did everything possible to enlist Congress's support—and thus to follow the Constitution. Mr. Obama, faced with mere political and bureaucratic inconveniences, spurned Congress's support and flouted the Constitution.

Mr. Rosenkranz is a professor of law at Georgetown and a senior fellow in constitutional studies at the Cato Institute. 

Cutting law school faculty

The following article the-unseen-costs-of-cutting-law-school-faculty describes the tragedy of cutting law school faculty because their students cannot find jobs as lawyers.

It does not seem to be concerned about the students themselves.

Attorney General Holder and self defense

In talking about Florida’s stand your ground law in a speech to the NAACP, AG Holder said:

“They (Florida and other states) try to fix something that was never broken. There has always been a legal defense for using deadly force if — and the ‘if’ is important — no safe retreat is available,” Holder stated.

“We must examine laws that take this further by eliminating the common sense and age-old requirement that people who feel threatened have a duty to retreat, outside their home, if they can do so safely. By allowing and perhaps encouraging violent situations to escalate in public, such laws undermine public safety. The list of resulting tragedies is long and — unfortunately — has victimized too many who are innocent.”

Some facts first.  I would go way out of my way not to shoot anyone.  But the question is not about me.  It is what is Holder saying about the fundamental right of self defense by anyone who is in danger.

Several questions come to mind:
1.         Can anyone trace for me this “age-old … duty to retreat” to its alleged ancient roots?
2.         Why is the SD (self defender) required to calculate whether “a safe retreat” is possible?
3.         What is “a safe retreat”? 
           a) If the SD can escape by leaving his money, is that a safe retreat? 
           b) If the AG(agressor) has a knife and SD thinks that he has a 30% chance of outrunning the AG, is that a safe retreat?
           c)  What if SD thinks he only have a 7% chance of outrunning ?
4.         If the opponent and SD have guns and SD is confident that he can outrun AG or kill him, but has good reason to believe that (if he runs) this will not be AG's last attempt to kill SD.  Is running a safe retreat?

The Death of Doma

Our opinions on this can be found here on

March 29, 2013 .

A prediction of what the court would do on

March 31, 2013.

Enemy Combatants

So should the Boston bombers be classified as enemy combatants?

First of all what difference does that make? 

I believe that the difference is, basically, if you are an enemy combatant then you may be handled under military law and you do not have some of the procedural safeguards that are afforded to persons who are accused in accordance with civil law. 

Just a couple of side points here about who gets what?

No one “gives” you your Miranda rights (against being required to incriminate yourself.) when you are arrested.  The rights are given to you by the Constitution.  Officials “read” them to you so that the court can be sure that you are aware of them.  Not only that, if they fail to read them to you that doesn’t mean you get off, it just means that what they learn after not reading them cannot (normally) be used against you.

It sounds like some of the TV guys think that these civilian rights apply only to citizens.  Your constitution uses the expression “person”  as in “no person shall be twice put in jeopardy…  .”  It does not say no “citizen” … .

So should they be classified as enemy combatants?  It seems like first you should decide on who the enemy is first. That means recognize that we have a new situation and it is not a question of simply “figuring out what they are” and that what we need a general definition of enemy here.    

I would say the place to start would be with the list of terror organizations that the government keeps, they are among the enemy. Also any organization that declares itself to be at war with the U S is an enemy.  Anyone who is a member of or fights for such a group is an EC (enemy combatant).

It does not appear that these guys had a group.  So they are common criminals.

Surveillance Cameras

In a recent comment concerning privacy rights and the use of surveillance cameras in public places Mayor Bloomberg said that present circumstances require us to “change our interpretation of the constitution”.

1.  I have no issues with the prolific use of surveillance cameras in public places.
2.   I have no issues with changing the Constitution using the change mechanisms defined in the constitution.
3.  I am (to be dramatic) horrified at the suggestion we should change our “interpretation” based on an agenda.

I sincerely hope that Mayor Bloomberg simply misspoke and does not truly believe what he actually said.

Shelby County vs Holder 2

In Shelby County vs Holder 1, I said that I think that the central question here is this:  Does the danger of systemic voter suppression currently warrant the continued disparate treatment of some states and units?

Are the units that now have to obtain preclearance in order to change their voter access laws still in need of the added scrutiny that preclearance provides?  Consider the evidence in the 2006 United States Commission on Civil Rights, which reported that in "the 10 years prior to the review, the overall objection rate (to preclearance requests) was so low as to be practically negligible, at less than 0.1 percent.^[15] "

That does not seem like a frequency large enough tojustify the government placing a substantial impediment on those states and units.  So I would say no.  That does not justify treating states differently.

Does this mean that I think it was wrong to have imposed Title 5 in the first place?  No.  It was probably appropriate then.

Shelby County v. Holder - part 1

The 1965 Civil Rights Act was a major milestone in the modern effort to establish voting rights in the US.  It essentially ended the systemwide voter discrimination laws that existed in the South (and elsewhere, but less frequently) at the time.  It was the law that President Lyndon Johnson said would lose the South for the Democratic Party for a generation.  Perhaps he was too optimistic.  The South has already been Republican for more than 1 generation.  Some would say the change is because the Republicans joined the South in its the racism.  Others would say that once the Democratic party was no longer willing and able to aid and abet the South in its maintainance of white supremacy, it still took a generation or so for the region to come into the modern age.

In order to ensure that new maneuvers would not conjured up to deprive certain citizens of the right to vote, Title 5 of the 1965 Civil Rights Act provided that certain states, counties or other subdivisions could not change their voting laws without preclearance by the Attorney General or the DC District Court.   The states which suffered this disability were those who had a record of denying voting rights to certain citizens.
While it was mainly the states of the old confederacy at the beginning, some of them have been removed and some other states and political units have been added.  However, it is still mainly in the South that preclearance is required.

 It is an important principle that the federal government treat each state equally.  It is also an important principle that no state be allowed to deprive its citizens of the right to vote.   Title Five's preclearance requirement for change leaned heavily toward the second priciple because it was the one that was most at risk at that time and the states were abusing their rights by making discriminatory voting laws.  That is (presumably) why it was deemed Constitutionally acceptable.

In 2006 Congress reauthorized Title 5 as it had several times before.  In the case, Shelby County v. Holder, currently before the Supreme Court the county claims that Congress exceeded its authority by doing that.

I think that the central question here is this:  Does the danger of systemic voter suppression currently warrant the continued disparate treatment of some states and units?

It should be noted that if Title 5 is excluded, it does not mean that units would be allowed to discriminate.  It would shift the burden of proof from the unit to those who claim that discrimination has occurred.  That is, it would be the same as in other states.

Whether these preclearance units have had a change of attitude or whether they are now lurking in the shadows waiting for a chance to deprive someone of voting rights is a question to which I will give my answer later.  However I will say now that perhaps evidence of what they are now doing should play a role in deciding the answer with respect to Title 5 of the Civil Rights Act.   According to Wikipedia:  In 2006, the United States Commission on Civil Rights reviewed the Justice Department Preclearance record and found that the percentage of DOJ objections to submitted changes has declined markedly throughout the 40-year period of the Act: from 5.5 percent in the first period to 1.2 percent in the second, and to 0.6 percent in the third. Over the 10 years prior to the review, the overall objection rate was so low as to be practically negligible, at less than 0.1 percent.^[15] The Commission's two Democratic members dissented from the report, charging that the Commission had "abandon[ed] the field of battle."^[16]

Obama beyond the pale 2

The second occasion in which I believe that Obama has gone beyond his authority is in his announcement that he would cease to enforce some of the immigration laws.  I agree that the laws are pretty bad, but he has taken the job of seeing that the laws are faithfully executed. Three years ago he deferred to the will of Congress when they declined to adopt the "Dream Act".  Now he is not willing to do that.  Now he just acts as if the Dream Act had passed.

It has been claimed that this is just "prosecutorial discretion" which doesn't work since the occasions are neither "rare" nor "close calls".  Therefore, he has, de facto, just rewritten the immigration law and that is the job of the Congress.

Rand Paul's Filibuster

In a previous post, Beyond the Pale with Obama, Feb. 5, 2013, I explained why I disapprove of the president's drone policy.

Consequently, while I don't have exactly the same objections that Rand Paul has, I am pleased with what he is doing.

American Football

Two things about American football.

Personal perspective declaration:  I never played anything except backyard football and I was very bad at that.  But I am a fair weather fan of the Dallas Cowboys.

1.  There have been a number of stories in the news the last few years about how football head damage usually results, not from one jarring hit, but from the accumulation of little hits and little concussions over the years.  As this becomes more and more well known I would expect a long term decline in the sport among the very young where it is most dangerous.  Whether that will move up the ladder and lead to a long term decline in the sport I, of course, don't know.  I would speculate that it might, if long term means in a century or so.
I think that that would not be inappropriate. Because of an attitude that prevails in the NFL and elsewhere which is well represented by a story I once heard (perhaps apocryphal) of a defensive back (A player who tries to keep the pass receivers from catching the ball and stopping them if they do catch it.) who told a reporter that his objective was to "hit the receivers in the middle of their back so hard that when the next pass came in they would think more about the coming hit that the spiraling football."  That is not a sport, that is Rollerball.

2.  The NCAA imposed an appropriately harsh sentence on Penn State.  However, there is one part of it that I think may be ill advised.
 "The NCAA also erased 14 years of victories..."  


a.    What does that mean?  
Do the teams that lost now get declared to have been the victors?


b.    This would seem much more appropriate if the crimes had been related to "the winning of games" such as recruiting violations.  But they were not.


c.  Also, this rewriting of history sounds more than a little bit Orwellian.

Civil Discourse and the ACA

You will see all sorts of interpretations of how Chief Justice Roberts was, in one way or another, scheming when he decided how he would vote in the ACA case.

I believe that for democracy to work we have to have a civil discourse and I believe that begins by assuming that the opposition has honorable motives.  That's right, even if in some cases they don't have such motives.

This case presented us with some good evidence that doing so is not foolish.

Many people think that judges do, and some people think that they should, cast their vote on the bench in the same way that a legislator votes:  Do I want this to become law?  That is not their job.  Their job is to keep the political branches inside the bounds of the Constitution.  As Roberts said in this case, "It is not our job to say whether it is a good law or whether it is a wise law."  Their job is to say whether the Constitution permits that law to be made.  There is no appeal beyond them which means that they are very powerful and it also means that it is imperative that they act with great restraint.

The ACA case presented good examples of judges making decisions that were contrary to what most people think is the way they would have voted if they had been in the legislature when the bill came up.
Roberts decision is well known.  But there was another decision which limited the federal government's power vis a vis the states.  Two of the liberals on the court ( Kagan and Breyer) voted with the 5 conservatives in saying that, if a state chose not to take advantage of the expanded Medicaid program, then the Federal Government could not withdraw funds from the original Medicaid program.  This was viewed as a victory for the conservative values of limiting federal power and maintaining federalism.


The AZ immigration case offered some other examples.


Perhaps at least one branch of the Government is stepping back from precipice of rancid partisanship.


But, as you know by now, I am a hopeless optimist.

Affordable Care Act

.
As predicted here ( see Is the Affordable Care Act Constitutional?  from April 20) the SC did not let semantics stand it its way and OKd the ACA.  I got  Kennedy wrong, but Roberts right (sort of).

The leftist columnists have been ranting for weeks that we were going to get a blatantly partisan ruling by the reactionary right that represents the tea party wing of the Republican Party.  Paul Begala intended it to be hyperbole, but the reality of their partisanship comes through in his piece about being left in the lurch by the decision.  From damn you John Roberts : " I'd already drafted a bitter, bilious, bombastic broadside against the right-wing hacks on the Republican Court. (Oops, my side won, so they're the highly esteemed and completely independent Supreme Court.)"


They were stunned into a moment of silence, but it did not last long.

I believe the most important part of this law is the requirement that businesses which do not provide health care will be required to pay a fine which is much less than the cost of health care.
This will motivate them to withdraw from employer provided health care.
This will lead to an increase in support for national health insurance.
That will lead, eventually, to national health insurance.

(revised from yesterday's version)
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