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Initial Thoughts on SCOTUS ObamaCare Ruling

Now, that I can discuss Chief Justice John Roberts’ recent publication without the punctuation of salty expletives, I thought that I would share a few initial thoughts.

I’m not surprised that the individual mandate was ruled to be a tax as I recall that description of it going back before ObamaCare’s passage; however, I am shocked that it was viewed to be constitutional as a tax.  Frankly, Roberts’ ill formed opinion has declared deuces wild with the Congress’ tax power.

I made a list of legislative obscenities that the ruling would permit under the doctrine of misnaming them a tax.  After posting several to Facebook as a test, I found the following to get the most reaction, so I will repeat it:

“I observe that the House Republican reaction to the ObamaCare decision could be to impose a federal financial penalty on all single parents and call it a tax, while hailing federally mandated marriage as a cure to social ills. Justice Roberts and the four court libs would uphold this abuse of the tax power.”

This is not an arbitrary assertion as it is founded in Republican talking points about promoting two parent families as a cure to all sorts of social dysfunctions that increase social welfare costs for the government.  Previously, Congress would authorize tax benefits for those that both paid taxes and lived congressionally approved lifestyles; now, Justice Roberts has rubberstamped the Congress punishing, without due process of law and other essential constitutional right guarantees, those who make life choices different than the preferences of the Congress-of-the-moment without regard to constitutional limits upon congressional powers.

Imagine what could be considered necessary and proper for the collection of this federally mandated marriage tax.  For example, all single males could be required to provide DNA to the government to prove that they do not owe a tax for having unknowingly co-created the fatherless child of an unmarried mother.

While I could go on and on about specific legislative abominations violating individual rights through Chief Justice Roberts’ expansive view of the tax power, I don’t want to give the vile Republicans too many ideas; so, let me focus on key understandings that should limit Congress’ tax power.

Before the ruling, I had drafted some thoughts on voluntary government financing versus problems under the current federal tax system.  The purpose of a tax is to raise revenue to pay for legitimate government expenses.  In that context, Congress has already been abusing its tax power to, amongst other issues: (1) punish successful Americans for the crime of being financial successful, while depriving them of the constitutional rights of the accused, and (2) expanding the domain of the federal government beyond its specific constitutional limits as if the tax power gave the federal government general police powers to nudge individual behavior.

This opinion by Roberts’ affirmed those abuses, while explicitly endorsing without court scrutiny, an expanded use of punitive taxes to nudge Americans into compliance with majority opinion; for example: would a congressional afterlife insurance mandate upon atheists be subject to strict scrutiny or not according to Roberts, who apparently failed to think his opinion through?  Roberts’ opinion is a total assault upon individual rights and President Thomas Jefferson’s view that the federal courts should protect individuals from government trampling upon their individual rights.

For those currently reflexively lambasting Chief Justice Roberts’ opinion, they should consider the consequences if he had ruled correctly on the limits upon Congress’ tax power.  There are many popular tax deductions and credits that would be correctly ruled unconstitutional as a dangerous expansion of the congressional policy domain.  While I think that Chief Justice Roberts should have had the integrity to rule in favor of limited congressional authority, Roberts is probably aware that he is too much of an unprincipled coward to have done so.  Ask yourself, do you have the integrity to impose limits upon transient majority opinion using tax policy to violate individual rights with a nudge?

Extra Point:  Fictional future Congressman Eric Cartman has declared that “soulless Gingers should be penalized with a punitive federal tax,” if they fail to dye their red hair into compliance with the judgment of others.  Chief Justice Roberts and the four liberal justices of the Supreme Court agree that this tax would be constitutional.

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The Republican Hydra

This year’s Republican nomination process was interesting, because the candidates who contested through the process represented distinct ideological perspectives.  Thus, they are proxies for the relative strength of contesting ideas within the Republican Party.

The ability of candidates with these clear distinctions to maintain the contest as long as they did may be attributed to an increase in protection of free speech rights from the Citizens United decision (see post “Super PACs: Shedding the Bad Rap” by Ray La Raja on Riding the Tiger).

In order of their relative electoral strength, the candidates and their ideas were as follows:

Mitt Romney, the victor, is the standard bearer for pragmatic stewardship, which is the dominate ideology of the Republican Party.

Rick Santorum evangelized for the religion right.  His electoral failure demonstrates the weakness of the theocrat faction.  For all their huffing and puffing, they are a minority within the party.

Newt Gingrich’s government reform platform expressed the agenda of the neoconservatives.  Republicans proclaimed him the candidate of ideas, and most Republicans don’t like ideas.

Ron Paul was followed by the ‘libertarians’.  While I disagree that Ron Paul is an advocate for freedom and limited government, his mistaken and passionate supporters label him so.  Based upon his supporters’ narrative, Paul’s showing demonstrates the electoral weakness of advocates of limited government within the Republican ranks.

A relevant mention is merited for Rick Perry, who championed the neoconfederates and was quickly booted from contention by the party of Lincoln.

Given the results on the primaries and caucuses, the Republicans have demonstrated themselves to be primarily a pragmatic party, not a conservative party.  This supports my frequent contention that those that complain loudest about RINOs as not really Republicans, but they hope that they can pretend to be the dominate voice in the party without being challenged for their fraud.

Because pragmatists oppose principles on principles, Romney’s policies will be implanted in his mind by those who do express ideas.  The changes brought into being during his potential Administration will be big government reforms from the neoconservatives, who will give empty promises that big government will be changed into better big government.  Meanwhile, the religious right will be thrown sufficient policy concessions to keep them obedient within the Republican coalition.  However, those that advocate limited government will be given rhetoric without implementing policies.

For an examination of the neoconservatives as the ideological bastard love children of Leon Trotsky and Plato, I recommend C. Bradley Thompson’s book Neoconservativism: An Obituary for an Idea.

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Answering the 14th Amendment Question

The other day, I wrote about the question that I would ask the Republican candidates for President. Today, I will answer that question as that will unpack it a bit and make the deficiencies of various candidates more evident:

I do agree that certain “Republican” candidates sound more like Jefferson Davis than Abraham Lincoln.

In some cases, they express anti-American sectionalism such as Gov. Perry endorsing secession, former Speaker Gingrich attacking federal civil rights law by endorsing essentially literacy tests as a qualification for voting, and Rep. Paul sounding like President Thomas Jefferson’s contemporary critic Rep. John Randolph of Roanoke.

Speaking about the antidisestablishment advocates, they express a hostility to the Bill of Rights and the 14th Amendment in the name of an appeal to a democratic trampling of individual rights…they would make failed former Democratic presidential candidate William Jennings Bryan proud.

To be specific, this error in constitutional interpretation is expressed on the Supreme Court today by the anti-conceptual orginalist doctrine advocated by Justice Scalia.

Let me attempt to summarize my own view briefly…I agree with President Jefferson who advocated a role for the federal courts as a power to protect individuals from abuse by a state. Through the leadership of George Mason and James Madison, our constitution was enhanced with a Bill of Rights identifying civil (procedural) rights that were so fundamental, although not exclusive, that the government may not infringe them. After the Civil War, the 14th Amendment guaranteed citizens the protection of due process and equal protection of the law against abuse by a state. Through Supreme Court decisions, this has been interpreted as a federal guarantee of fundamental rights (the incorporation of aspects of the Bill of Rights) such that individuals are secure in their individual rights from abuse by state action.

Many Republicans recently cheered when the Supreme Court incorporated the 2nd Amendment as a check against overreaching state and municipal gun control laws. Yet, as if ideas and principles do not matter, many of these same Republicans (some currently running for the Presidency) oppose the incorporation of the 1st Amendment’s establishment clause. Given the history of ours states abusing Christians of various sects, including the sects of these same people, they have failed to learned the lessons of history, which led to disestablishment–the separation of church and state.

Some may say that these are a lot of words that do not amount to much, so let me concretize it with a couple of examples of protections against state power that you risk taking for granted:

* buying condoms in Connecticut (Griswold v. Connecticut 1965)
* marrying the person you love in Virginia, even if you are of a different race (Loving v. Virginia 1967)
* attending school as a Jehovah’s Witness without getting beaten up for failing to pledge allegiance (West Virginia Board of Education v. Barnette 1943)
* just compensation for property seized by the state (Chicago, Burlington, and Quincy Railroad v. City of Chicago 1896)

While I could go on, these examples demonstrate the principles and consequences of those who seek democratic state governments unchecked by federal constitutional protections for individual rights.
* they promise to make abortion illegal, and they will take your condoms
* they seek to revoke the voting rights of blacks, and they will decide who you can marry
* they command praising the Christian god, and they will oppress the wrong kinds of Christians
* they take a citizen’s property for Pfizer’s benefit today, and they will take your property as a gift to the collective tomorrow

Related to court appointments, I would not advance advocates of Justice Scalia’s anti-conceptual originalism nor Justice Breyer’s subjectivist living constitution model; instead, I would nominated judges who appreciate that the purpose of government is the protection of individual rights and that our Constitution, civil rights statutes, our laws, and regulations are to be means to that end.

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“Republican” Presidential Candidates vs. 14th Amendment

For tomorrow’s FoxNews/Google Republican presidential debate, YouTube was soliciting questions; unfortunately, I did not make the effort to construct a video question…such a hassle to find a period without ambient noise; yes, little girls I refer to you.

However, I did have an idea for a question, for which I wanted to understand the answer. As a visual, consider a war weary picture of President Lincoln with the following scripted audio, spoken with my own personal drawl:

In this here Republican candidates’ debate, I am surprised to see participants who are not Republicans, but are in fact neo-con-federates! Yes, Perry, Gingrich, and Paul, I am especially referring to you. Much has been and should be said about the 10th Amendment; however, some of y’all’s rhetoric is outright antagonistic to the 14th Amendment. As someone who puts yourself forward as the nominator of the federal judiciary, please expound upon your view of the 14th Amendment, equal protection, due process, and the incorporation of the Bill of Rights as a check upon the abuse of individual rights by state authorities. In praising recent decisions about the incorporation of the 2nd Amendment by the Supreme Court, please do not neglect the more vital Establishment Clause from the 1st Amendment.

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On Foreign Policy, Our Founders vs. Ron Paul


It has been asserted that Ron Paul’s foreign policy is consistent with that of our Founders.  Let me list some of the actual foreign policies of the early American government so that supporters of Paul can reconsider whether he is actually consistent with them.

•     As an ambassador overseas, John Adams undermined foreign governments by giving aid to revolutionaries; further, he sought to promote American constitutional republicanism as superior to the monarchies of Europe and democratic proposals of French intellectuals.

•     As Minister to France, both Thomas Jefferson and James Monroe sought to increase American trade with France in part to weaken Britain. Jefferson offered detailed reforms to French laws that were necessary to rollback intrusive economic regulation.

•     American governments consistently made it a matter of policy to obstruct sovereign native tribes’ relations with European powers; manifestations of this policy include:  the War of 1812, Jackson’s invasion of Spanish Florida during the Monroe Administration, and a policy of pushing Indians west of the Mississippi that began in the Washington Administration.

•     A key policy plank of the Democratic – Republican Party before 1801 was a strong alliance with and preference for post-revolutionary France as part of a policy to expand republican governments in the world.

•     As President, Jefferson secured the purchase of Louisiana by advising the French that their failure to transfer New Orleans and navigation of the Mississippi to the Americans would result in war.

•     During the Jefferson, Madison, and Monroe Administrations, Spain was under threat of war with America over Spanish West Florida; during the Napoleonic wars, an American invasion of Spanish Florida was considered so as to prevent it from falling into British hands.  As President, Monroe invaded Florida twice to suppress piracy and the Seminoles.

•     During the Jefferson Administration, the United States engaged in regime change in Tripoli.

•     The Monroe Doctrine opposed further colonization by Europeans in the Americas.

•     Madison and Monroe both championed colonization in Liberia by freed American slaves.

•     During the Jefferson and Madison Administrations, American trade with Britain and France was subject to a series of federal restrictions to prevent such commerce.  The stated object of these policies was to compel Britain and France to change their own policies.

I do not find such early American foreign policies to be consistent with an evaluation of a non-interventionist American government that “didn’t pretend to know all the answers” while staying out of other people’s business.

For a study of early American foreign policy, I recommend the following definitive biographers:  Douglas Southall Freeman on Washington, C. Bradley Thompson on John Adams, Dumas Malone on Jefferson, Ralph Ketcham on Madison, and Harry Ammon on Monroe.  I am looking forward to reading Samuel Flagg Bemis’ volume John Quincy Adams and the Foundations of American Foreign Policy; while it is out of print, it can be found and I have it.

On Jefferson in particular, Malone’s account of his time as Minister to France, Secretary of State, and President demonstrates that Jefferson established principles for American foreign policy that have been consistent to the present.

Foreign policy is just another area in which Ron Paul is anti-Jeffersonian.

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FBI Dropping the Intelligence Ball

Over a week ago on 9/10 (evidence that I am backed up on my reading), Scott Holleran had an interesting post about a tipped link between a 9/11 hijacker, a woman, Lake Tahoe, and a FBI investigation with unknown results.  He is particularly concerned about this as a possible thread leading to a state sponsor of terrorism or Saudi Arabia.

This reminded me of comments made by John Lehman (9/11 Commissioner) during a 10 year 9/11 retrospective hosted by the Council on Foreign Relations.  Mr. Lehman appeared during the third session titled “Counterterrorism and Homeland Security: Does the United States Have the Right Strategy?

Relevant to the topic of FBI investigations of Saudi links to the hijackers, Mr. Lehman said in the context of intelligence issues (from the transcript):

And could I just take one addenda to that?  On the issue of domestic intelligence, I couldn’t agree more.  I think our domestic intelligence is very, very inadequate.  And in the 9/11 commission, I think all of us were, as the weight of evidence grew, convinced that we should split the FBI, that a cop shop should not be a domestic intelligence agency.  And we decided not to recommend that, because it was just too much going on.  You couldn’t — that kind of major surgery right after 9/11, with all the new changes that had to be done, was just not very wise.

But I think absolutely we should relook at that and reopen that issue, because most of our effective intelligence allies have that split function.  They don’t let the intelligence, domestic intelligence, have prosecutorial powers, and they don’t trust cops to be good intelligence tradesmen.

A perfect example was in our televised hearings — which I’m sure you all watched — which was when we asked the acting director — we referred to the evidence that had been gathered during the investigation from the intelligence communities of the five operatives in Saudi embassies who were clearly enablers for the — for the 19, and who were — helped them, you know, find apartments, drove them from one place to another, got them into flight schools.  And there were five named individuals that were clearly very friendly to these 19 people.  And so we said:  What has happened with them?

And the acting director said:  We did investigate them, but we found insufficient evidence to get an indictment, so we terminated those investigations.  Now, can you imagine an intelligence professional saying a thing like that?  I mean, here were some of the most valuable targets in the United States after 9/11, and FBI dropped — didn’t — so we followed up, said:  Well, where are they now?  Well, we don’t know.  We — didn’t I hear — didn’t you hear me?  I said we terminated the investigation.  That is the prosecutorial, law enforcement mentality which makes FBI such a fine law enforcement agency, and makes them unable effectively to do real intelligence tradecraft, in my judgment.

Combining Holleran’s report and Lehman’s statements, it seems probable that the FBI would have dropped the case of the woman at Lake Tahoe, because they lacked evidence to support a prosecution.  As the FBI has not publicly requested help finding this “person of interest,” I suspect that they know who she is, interviewed her, and did not pursue the link further.

On the separate issue raised by Mr. Lehman that the FBI’s cop and intelligence functions be separated, I am not eager to see such a reform unless temporary and circumscribed.  Such  a domestic intelligence operation would likely move from Justice to the Department of Homeland Security, which has a troubling record of hostility to individual rights (see TSA).  Given the intelligence, protection, and law enforcement liaison functions, where would this new domestic intelligence agency go logically: Customs and Border Protection, Immigration and Customs Enforcement, or Secret Service?

Personally, I would be very concerned that it would become a Secret Service function; thus, putting a new domestic intelligence service in close proximity to the White House.

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Gov. Rick Perry v. the U.S. Constitution

There has been talk of Texas Governor Rick Perry running for President.

In response to a friend’s post asking whether people would support Perry, I commented that “Because of his previous comments about secession, I am unlikely to vote for him unless he repudiated them.”  My friend asked, “Why?”

Perry’s endorsement of secession is advocating the unconstitutional. I think that the Supreme Court got it correct in Texas v. White (1869).

In my judgment, Perry’s position makes him unfit to be President.

News report from the time:

“Gov. Rick Perry on Thursday stuck by his earlier statement that Texas can secede from the United States …”

“A Perry spokeswoman said Perry believes Texas could secede if it wanted.”

“I’m talking about states’ rights,” Perry said.

On this issue, I’m with Sam Houston, who was removed from the governor’s office over his opposition to Texan secession, and Perry stands with Jefferson Davis.

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Federal Drinking Age is Irrational

Michelle Minton (Competitive Enterprise Institute) has a recent piece advocating rolling back the drinking age . She observes:

Statistics aside, the drinking age in the U.S. is difficult to enforce and discriminatory toward adults between 18 and 21 years old. The current age limit has created a culture of hidden drinking and disrespect for the law.

I want to emphasize the last point, disrespect for the law. In my long gone youth, drinking was illegal for me in Virginia, so my friends and I would drive to DC where we could drink and dance legally; so much for breaking the link between drinking and driving. At school, I knew of several people making fake ids; one trick was to make driver’s licenses for a distant state that would be unfamiliar locally. Far from limited access to alcohol, moonshine was readily available. Further, as long as it was all illegal, liquor was preferable to beer.

Those early adult years are a particularly bad time to subject citizens to irrational legal restrictions as they make personal choices about the ideas that will guide their lives. Some will learn that it is valid to abuse politics to impose the irrational on others. Others will learn that legal standards are arbitrary and not tied to protecting individual rights. A few will be punished and have their futures compromised in order to make an example for others; teaching the sacrifice of the individual for the good of the many.

As a parent, I looked at these restrictions and the hidden culture of drinking from a different perspective. In our community, a young man died from alcohol poisoning. Despite being in the company of others, no one attempted to get him help when he was having convulsions, because the law would get them into trouble. To avoid the penalty from under age drinking, one young man died and several went to jail for his death. The legally imposed restrictions upon honest communication are harming and killing our kids.

As Minton mentions in her piece, countries with less restrictive drinking laws have fewer problems with youthful drinking. Without the interposition of government threats, parents and their kids can have honest and responsible interactions about drinking without being distracted by the draconian risks imposed by statute.

While President Obama claims to have been elected with the youth vote, what has he done on this issue? Individuals who voted for him are made criminals by an irrational law and his Administration has proposed nothing to correct this injustice.

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Unbalanced Rhetoric

Sen. Jim DeMint has demonstrated himself to be unserious about rolling back out of control spending by the Congress.  Today, he threatened to filibuster legislation to raise the debt ceiling unless a constitutional amendment is passed to balance the budget.

Consider that only a little over a week ago the Congress could have but failed to pass a balanced budget for 2010; further, a few days ago, the Republican controlled House could have passed a balanced budget for 2011, but again failed to do so.

It takes fewer votes to pass a balanced budget, or to override a filibuster, than it does to pass a constitutional amendment.

Like the empty rhetoric that will comprise DeMint’s filibuster speech, Republicans make empty promises about the panacea of a balanced budget amendment, when they should be focused on concrete and actual cuts in spending by the elimination of federal programs and real reform by a planned phase out of entitlement programs.

Under the current budget process without the requirements of balancing, our Congresses can not pass budgets on time and could not even pass a budget at all last year.

Adding constitutional constraints, which they already regularly ignore, will not magically develop integrity in our corrupt legislators.  Republican rhetoric is useless.  America requires legislators who will act upon principle (such as the enumerated limits on congressional powers) to actually cut spending.

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Mondale’s Evil Call for Raping the Producers

The fool who lost 49 of 50 states in the 1984 election has suggested that the current Administration champion tax increases.

In a time in which Republicans control the House of Representatives, such a suggestion is beyond stupid and may qualify the former V.P as an insane person requiring state protection as he definitely seeks harm to others.

For those ignorant of the Constitution like congressional Republicans, all tax legislation must originate in the anti-tax-increase House of Representatives.

There will be no increases in federal taxes unless the Republicans betray the American people….as they have done before.

Mondale lies when he states that “Polls consistently show that majorities of Americans are willing to pay taxes…” as the truth of the matter is that the majority is more than willing for someone else to pay those taxes…the rich.

Aristotle identified the degenerate from of democracy that would result in tyranny was based upon the public confiscation and transfer of wealth through majority rule.  Our republic government has been corrupted by ignorant adoration of democracy, which has made us susceptible to democratic degeneration to tyranny.

Today, Americans must stand up for the productive against the government’s lust for the wealth of the more productive of our citizens; failure to do so will embraced the tyranny advocated by the party of slavery, the Democrats.

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