First Amendment Doesn't Give You Free Speech

The First Amendment doesn’t give you any rights!

Too many people parrot the phrase “my first amendment rights” as if the First Amendment to our Constitution gave us some rights. Maybe it is just being semantically picky to insist that the First Amendment gives us nothing. We naturally have the rights enumerated in the Bill of Rights. By being born a human being with the cognition unique to our species, we can think or say anything we please. Only some outside force through aggression can attempt to silence us or impose some system of belief upon us. Even then we are free to think and say anything but most of us quickly learn when to keep our mouths shut. Censorship comes most often at the personal level, from a parent, spouse, acquaintance, a bully, or the political correctness police.

The Bill of Rights limits the Federal Government

All the Bill of Rights does is guarantee that our national government can do nothing to take away our natural rights.

Specifically in the case of the first amendment, the Federal Government through Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

What about the states? Can they impose a religion on us, or tell us when to be quiet, or prevent us from assembling peacefully on a street corner?

Over the years the courts, and most importantly the Supreme Court, have selectively ruled that certain provisions of the Bill of Rights also apply to the states. It is called the Incorporation Doctrine. The Legal Information Institute of the Cornell University School of Law provides a good discussion of the Incorporation Doctrine citing relevant court decisions. (HERE)

The Fourteenth Amendment to the Constitution was ratified in 1868 as part of reconstruction after the War Between the States to insure that state and local governments were prohibited from depriving persons of life, liberty, or property without due process of law. The Supreme Court has relied heavily on the 14th Amendment (as well as the 5th) to selectively require states to uphold our natural rights while at the same time allowing states and cities wide latitude to govern locally.

The First and Second Amendments apply to the States

The First and Second Amendments are fully incorporated as a consequence of Supreme Court Rulings:

Freedom of Religion

Freedom of religion is not as simple as it sounds. Freedom of Religion means only that you may believe anything you want without interference government. The freedom to act, unlike the freedom to believe, is not absolute.

When it comes to the exercise of religion, ritual and actions, the court has laid down decisions that govern hundreds of special situations: regulation of religious solicitation, tax exemptions, access to public property, church exemption from some laws, Sunday closing laws, conscientious objection, religious ritual at government functions, rituals that violate drug laws, and many more.

The No Religious Test Clause of the U.S. Constitution says “The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.” (Article VI, Section 3).

The Constitution of the State of Texas says something similar to the U.S. Constitution but with a small twist: “No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.” Texas has agreed not to enforce the last clause but it remains in the State Constitution. Similar provisions in the constitutions of Maryland and South Carolina have been struck down by the U.S. Supreme court. Mississippi, Tennessee, and Arkansas continue to have similar provisions.

Article 19 Section 1 of the Arkansas Constitution, titled “Atheists disqualified from holding office or testifying as witness”, states: “No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court.”

Arkansas does not enforce this article and it appears obvious that the fourteenth amendment to the U.S. Constitution by Incorporation prohibits such a religious test.

Freedom of Speech

In Gitlow v. New York , the Supreme Court ruled that New York’s Criminal Anarchy Law passed in 1902 could limit freedom of speech because it outlawed “language of direct incitement”, which is not “the expression of philosophical abstraction.” Similarly advocacy of the use of force is not protected speech when it is “directed to inciting or producing imminent lawless action.”

What about other limits on the freedom of speech? Several states still have blasphemy laws on the books.

Massachusetts, General Laws, Chapter 272, Section 36 states:

“Whoever willfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.”

In addition to Massachusetts, Michigan, Oklahoma, Pennsylvania, South Carolina, and Wyoming, still have blasphemy laws on the books even though they are not enforced.

In Massachusetts, poor Abner Kneeland was sentenced to 60 days in jail for seditious blasphemy. His case involved not only freedom of speech but also freedom of the press; he was a journalist who a published in The Boston Investigator a “scandalous, impious, obscene, blasphemous and profane libel” of and concerning God. He appealed his conviction to the state supreme court, which took two years to uphold his conviction. Kneeland served his 60-day sentence in summer of 1838 and then moved to Iowa to found a community of free-thinkers, which failed, so he turned his attention to politics as a Democrat. But even as a Democrat, being an “infidel” doomed his career as a politician.

Freedom of the Press

Over the years the “Press” has evolved from people using printing presses, large and small, putting ink on paper to say almost anything whether true or not, to other “Media” both large and small saying almost anything whether true or not. Media now includes not only ink on paper but extends to radio, television, movies, and the Internet. Now the Mass Media reaches huge audiences and has the ability to sway the opinions of millions of people. Unfortunately many so-called news outlets have evolved into propaganda outlets for various ideologies as well as political and financial interests.

The financial clout of media generally protects it from interference by government at all levels. Media accountability is a term to express the idea that powerful propaganda outlets should answer to the public interest but few organizations are able to effectively instill a high regard for the truth in media.

In the Western World, media is financed by commercial interests. Most commercial interests rely on a mass of customers buying their goods and services. They are generally sensitive to the welfare of their customers on whom they depend for their profits.

When a television news outlet publishes immediately verifiable false information, other opposing outlets pounce on them in the relentless quest for viewers. The Internet lights up, Twitter goes crazy, and soon the controversy disappears from public view.

Freedom of Assembly

The First Amendment explicitly prohibits the Federal Government from infringing “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” As a consequence of Incorporation, other governmental entities may not infringe the right of people to peacefully assemble themselves. If during such assemblies, the people wish demand a redress of their grievances, government is prohibited from infringing that right.

The key to this guaranteed freedom is “peacefully.” Other considerations are the property rights of places where people may want to assemble. States and Cities may require permits to use public property, or to impede traffic on public streets. Private property owners may prohibit use of their property for assemblies or may also charge a fee for using the property.

Freedom of assembly does not allow anarchist groups like Antifa to destroy property. Such activities make a mockery of constitutional freedom.

The gradual evolution of our Constitution and the great difficulty to amend it are among its strengths. This is certainly a conservative view. People on the ideological right are suspicious of calls for rapid change, such as the recent outcry to eliminate the Electoral College codified by Twelfth Amendment. It was ratified in 1804 and has withstood the test of time.

Our era of the Internet has created a population overloaded with information of dubious validity who demand immediate gratification and affirmation of their subjective and fleeting values. Cable news is remarkably shallow in its quest for marketable sensationalism. As demonstrated by many recent elections, mediocre people are elected to high and low political office on the slimmest of electoral margins. The only way most people know the candidates for whom they vote is through paid media presentations. In the final analysis all media presentations are paid for by somebody and all should be suspect. A random toss of a coin could produce similar results.

Here is a list of amendments that have been not been incorporated to apply to the states although some states do provide such protections in the state constitutions and laws.

Amendment III – prohibition against quartering of soldiers in civilian homes.

Amendment V – the right to indictment by a grand jury. (Double jeopardy and self-incrimination have been incorporated)

Amendment VI – right to a jury trial in civil cases.

Amendment VII – Suits at common law. (Jury selected from residents of crime location has not been incorporated.)

Amendment VIII – Cruel and unusual punishments inflicted (excessive fines has not been incorporated)  Federal and State Governments have some problems in this area. What constitutes excessive fines?  J.P.Morgan Chase-$13 Billion? British Petroleum – 3 Billion?

This interesting commentary is instructive.

Amendments IX and X – only apply to the U.S. Constitution

Additionally, in Gideon v. Wainwright (1963), the Court ruled that states must provide legal counsel to indigent criminal defendants, while Brown v. the Board of Education (1954) struck down a state’s ability to discriminate in public education on the basis of race.

The Never-ending Gun Control Debate

Humans Naturally Detest Murder

Ruger Mini-14 – Caliber .223

All humans recoil in disgust when a fellow human is murdered. We pass laws to punish perpetrators and enact measures to discourage murder. In the United States, firearms are overwhelmingly the weapon of choice for both murder and self-defense.

Does this mean we should pass laws to outlaw guns as a way to outlaw murder?

Absolutely not!  Guns also prevent murder so everybody needs to step back and look at the facts.

Mass Murder

Whenever there is a mass murder (defined as one in which four or more people selected indiscriminately, not including the perpetrator, are killed), politicians and citizens renew their cry for “gun control.”  Usually their knowledge of both firearms and the Constitution is either totally lacking or is subservient to their emotions. They begin by spouting false statistics to bolster their vacuous arguments and then increase the volume and frequency of their outcry. Some cherry pick numbers from the Small Arms Survey  to lend credence to their arguments. With little or no understanding of statistics they foist their emotional claims on a public audience equally unable to pick out the truth from the numbers.

Do the statistics really matter?

Question: How many deaths attributed to firearms are there in the United States in recent years?

Answer: Number of deaths: 33,594.  Deaths per 100,000 population: 10.5  (Center for Disease Control and Prevention – data from 2014)

Question: How many suicide deaths attributed to firearms are there in the United States in recent years according to the CDC?

Answer: Firearm suicides- Number of deaths: 21,386.  Deaths per 100,000 population: 6.7, or approximately 64% o firearms deaths are suicide.

That leaves about 12,208 murders attributable to firearms as reported by the CDC or an estimated 15,696 reported by the FBI in 2015. These numbers change but the absolute numbers are only a small part of the story.  In Chicago, where they have the strictest gun control laws in the nation, there were approximately 760 murders in 2016 by firearms, mostly in 5 south and west districts of the city where 59 rival gangs are fighting for territory.

The Reality

  • A majority of firearms deaths are suicides.
  • Most murders are committed by criminals who steal the weapons they use in their crimes.
  • Rifles of all kinds, including those pictured above, are used in less than 2% of murders.
  • Civilian versions of so-called assault rifles are not capable of fully automatic fire without modifications that require special licensure and paying a hefty tax.
  • The civilian model AR-15 uses the same caliber as the Ruger Mini-14 pictured above and has the same rate of fire as the little Ruger rifle.

In a Washington Post editorial on February 22, 2016, the paper claimed:

“The United States loses far more people to gun violence — homicidal, suicidal, accidental — than almost any other country, and there is one reason: the easy availability of guns.”

Their conclusion does not stand up to scrutiny. An all cause (homicidal, suicidal, accidental) firearm-related death rate per 100,000 population per year compiled by Wikipedia places the United States at 10.54, while Brazil is at 21.2 where the disarmed populace is terrorized  by armed criminals. Many of the countries with higher firearm related deaths have strict gun laws. South Africa has a firearm death rate per 100,000 of 8.3 but only 17% of those are suicides.

In a list of countries by intentional homicide rate, the United States has 4.88 deaths per 100,000 population. Japan (no guns) has a mere 0.31 homicides per 100,000, yet they have a suicide rate of around 26 per 100,000 people. The Japanese have discovered efficient ways of committing suicide that do not rely on the convenience of a firearm.

Second Amendment assures Citizens’ Right to Self-defense

Without going through the long history of Supreme Court decisions, the Second Amendment to the Constitution affirms the natural right of citizens to defend themselves and prohibits the Federal Government from infringing that right.  In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court affirmed that the right to keep and bear arms is an individual right.

Firearms Prevent Murder and other Violent Crimes

It is very difficult to know exactly how many crimes are prevented by the presence of a firearm because merely seeing that a potential victim of crime is armed or may be armed could prevent a potential perpetrador from going forward.  Such events usually go unreported so there are no reliable statistics.

Anecdotally,   few years ago Florida was having a lot of carjackings, which decreased when laws were passed to allow concealed carry of firearms, and “stand your ground” defense laws. The apparent decrease proves nothing and these laws are being constantly reviewed by legislatures and courts.

Correlation is a statistical measure (expressed as a number) that describes the size and direction of a relationship between two or more variables. A correlation between variables does not automatically mean that the change in one variable is the cause of the change in the values of the other variable.

Causation indicates that one event is the result of another event. Cause and effect is very difficult to prove when human behavior is involved.

Pro-firearms sources may claim that  2 or 3 million violent crimes are prevented every year in the United States. Other sources tout “statistics” showing a lower number. The truth is that neither side of the debate knows because the information is not available! From the available data, there is a correlation between being armed and experiencing less crime. (See More Guns, Less Crime a book by John Lott, whose statistical analysis provides a convincing case for the validity of the title of his book)

We have a natural right to defend ourselves from harm, and fortunately citizens of the United States have that right affirmed in the founding documents of the nation. “Keep and bear arms” does not just mean firearms.

Given the choice of carrying a handgun, a baseball bat, or a samurai sword, it is hard to argue that the handgun is not a more efficient tool for self-protection.

This film by Nicolas Lévesque thoughtfully demonstrates that we who call ourselves Americans have a unique culture deeply steeped in individual liberty.

Speaking to members of the Massachusetts Anti-Slavery Society on January 28, 1852, American Abolitionist and liberal activist Wendell Phillips. said:

Eternal vigilance is the price of liberty; power is ever stealing from the many to the few. The manna of popular liberty must be gathered each day or it is rotten. The living sap of today outgrows the dead rind of yesterday. The hand entrusted with power becomes, either from human depravity or esprit de corps, the necessary enemy of the people. Only by continued oversight can the democrat in office be prevented from hardening into a despot; only by unintermitted agitation can a people be sufficiently awake to principle not to let liberty be smothered in material prosperity.”


Additional Links to Articles that demonstrate the disingenuous arguments of “gun control” advocates:

Gun Rhetoric vs. Gun Facts

This is an article by that fairly discusses many of the complex issues surrounding the firearms debate.

Disarming the Myths Promoted By the Gun Control Lobby

This is a good article by Larry Bell  published in Forbes Magazine in Feb. 2012.

Senators betray their Oath of Office to further their Political Agendas

Article 6 of the Constitution

image of Constitution - Article 6, paragraph 3

Constitution – Article 6, Section 3

The oath of office for United States Senators is required by Article 6 of the Constitution. It’s text is as follows:

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

Yet their actions in confirmation hearings shamelessly ignore the Constitution and reveal their partisan biases.

The same Article 6 of the Constitution has a clause that reads: “… no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Candidate grilled over her Religious Beliefs

During a September 6, 2017 Senate hearing to confirm Professor Amy Coney Barrett to the 7th federal appeals court based in Cincinnati, Ohio and Chicago Illinois,  several Democrat Senators grilled her about how her religion would inform her decisions if she were appointed to the Court of Appeals.

“When you read your speeches, the conclusion one draws is that the dogma lives loudly within you,” Senator Feinstein said of Barrett’s writings. “And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”

Senator Richard Joseph (Dick) Durbin, (D, IL) himself a Catholic, seems to forget the Constitutional proscription about making a religious test for any office, including judges.

Senator Mazie Hirono of Hawaii asked another religion based question.  “You wrote about the duty of Catholic judges in capital cases,” she said. “In spite of the fact that you had written in an earlier article that Catholic judges—and you would be a Catholic judge—you would not recuse yourself from death-penalty cases?”

Senator Sheldon Whitehouse, (D-RI) observed while grilling Judge Joan Larsen, “To sit here and pretend that there is no role for people’s personal or private views or their social views when they go to the court—it’s just, it’s so preposterous as to be silly,”

Drain the Swamp

What is silly and preposterous is that the American public elect professional political hacks that are making public service into a lifetime profession. Fortunately the Madisonian model of government appears to be still functioning, especially with the election of Donald Trump. Agree with him or not, his “Drain the Swamp” metaphor has caught on with a sizeable fraction of the public and the sentiment may persist past his presidency.

While the Madisonian Model has been modified by the 17th amendment and continual calls for direct democracy have the potential do destroy the safeguards the founders laid down, a vigilant, well informed, and well educated electorate may be able to protect our legacy.

Source: Southeast Missouri State University.

Direct Democracy and the Initiative Process

California Cases Reveal the Dangers and Successes of Direct Democracy at the State Level

A major flaw of direct democracy is a tendency of the majority to abuse the rights of the minority.  Such abuse is mitigated on the national level by the restraints in the Constitution that established our federal republic. The Electoral College is a consequence of the protections built into the Constitution. Rules established by the Senate and House of Representatives on the federal level can also be used by the minority party to moderate abuse by the majority (eg. the fillibuster rule in the Senate). Similar procedural rules are available in the various state legislatures to varying degrees.  The deliberative process of legislatures generally can be credited with allowing cooler heads to prevail. While in the early days of the Republic there were many examples of minority rights being trampled by the majority, as our nation matures the genius of our founding documents is increasingly evident as the rights of minority persons and parties have been protected, occasionally requiring an appeal to the federal courts and the U.S. Supreme court for redress.

Direct Democracy is Safer when it is Closer to the People

Direct Democracy is dangerous on a national level, questionable on a state level, an amusing hobby for politicians on a county and muncipal level, and virtually ignored on a family level. Is it any wonder then that the word DEMOCRACY does not appear in the Constitution of the United States. Democracy doesn’t even function on an individual level as is evident when a person resolves to to abide by self-discipline only to succumb to human frailty. At least little damage is done when an individual makes a bad decision; it is easily reversable.

Twenty-six states plus the U.S Virgin Islands have provisions in their laws that allow direct Initiatives or Referendums by the people. In practice the exercise is not direct democracy becasue most of the initiatives are sponsored and funded by special interest groups as an end run around the more reserved and deliberative legislative process by elected representatives.  In 2001, the National Conference of State Legislatures assembled a task force to review the growing use of initiatives and referendums around the country and to examine their effect on representative democracy at the state level. They found that abuse of the Initiative and Referendum process outweighed the  advantages and suggested that other states should avoid enacting such provisions.

The case of California is an example of why the Initiative process has outlived its usefulness.

California has become a one party state with Democrat supermajorities in both houses of the legislature, able to run roughshod over the minority party.  The supermajority allows Democrats in California to raise taxes, place measures on the statewide ballot, enact laws with “urgency” clauses, and override the governor’s veto. In spite of the concentration of power in the Democrat Party, state legislators have their hands tied in 2017 because of past citizens’ Initiatives. On the surface it can be argued that the initiative power of the people can overcome abuse by elected officials. But what started in 1978 as a citizen revolt against high taxes has combined with intervening economic and demographic events to create a crisis in California’s finances.

Since 1978, when Proposition 13 (prop 13) lowered property-tax rates, hundreds of recalls, initiatives, and ballot propositions have been approved in California, but few have had the long term and poorly understood effect of  prop 13. In response to rising property taxes, the people amended the state constitution to fix property taxes at 1%.  In 1992 the U.S. Supreme Court upheld the constitutionality of prop 13 in Nordlinger v. Hahn, 505 US 1 – Supreme Court 1992.

Now it appears that the rigid property tax regime built into the state constitution has distorted economic conditions in a similar way that rent controls and over-regulation can distort a free economy. It has reduced local control of schools because inflexible property tax revenue has necessarily been replaced by funds from state income taxes. The following articles review some of the other distortions to California’s economy.

Citizen legislation through the Initiative process does not uniformly result in disasters. Here we have explored the unintended consequences of prop 13 that have left the state with intractable economic problems. The two propositions 8 that follow, while not resulting in disaster, demonstrate the questionable value of direct democracy on the state level.

Proposition 8 (2008)

In 2008, citizens of California placed a referendum on the ballot to ban gay marriage.  It passed by a vote of 52 to 47 percent.  As a State Constitutional Amendment, it was ruled constitutional by the California Supreme Court in 2009.  In 2010, it was ruled unconstitutional by a federal district court on the basis that it violated the Fourteenth Amendment of the U.S. Constitution (Equal Protection). Finally, in 2013, the case was decided on technical grounds (standing) by the U.S. Supreme Court:

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) – this case dealt with the Prop 8 litigation coming out of California. The Court held that, as private parties with a “generalized grievance,” the Prop 8 proponents did not have standing to appeal the District Court ruling. The Court explained that Article III of the Constitution confines the power of the federal courts to deciding actual “cases” or “controversies.” Once the District Court issued its order, the Prop 8 proponents “no longer had any injury to redress,” and that “no matter how deeply committed petitioners may be to upholding Proposition 8,” their interest was insufficient to confer standing. Given its ruling, the Supreme Court left the District Court’s opinion – that Prop 8 violated the Fourteenth Amendment – as the final and controlling decision on the merits.

Proposition 8 reflected deep religious and political views of people who financed the Initiative and validated both the informed and uninformed sentiments of enough people for it to pass. One can assume that a great number of the 47 percent who opposed the Initiative voted based on reason, emotion, or both.  The 2008 prop 8 occurred within the context of national debate about same-sex marriage where other states ended up voting laws both in favor and against. Finally in  June 26, 2015, the United States Supreme Court settled the matter in Obergefell v. Hodges that state-level bans on same-sex marriage are unconstitutional. It is understandable that Californians who wanted to preserve traditional marriage would use the only tool available to them, the Initiative. They knew that the legislature would not, or perhaps could not, give them the result they wanted.  Liberty demands

The Other Proposition 8 (1982)

Proposition 8 (or The Victims’ Bill of Rights) was a Initiative enacted by California voters on 8 June 1982 that amended the state constitution.

“A growing hyper-vigilance about “unsafe streets” paired with a general perception that state judges were more concerned with safeguarding criminal defendants’ rights than with affording victims a meaningful voice within the trial process sparked an impassioned victims’ rights movement. A broad constituency of politicians, police officers, prosecutors and activists lobbied extensively to correct what they considered a substantial imbalance between victims’ and defendants’ rights. This coalition urged the state legislature to enact reforms that prevented judges from broadly applying the exclusionary rule, which, under certain circumstances, excluded relevant evidence from trial. Fundamentally, this coalition sought to give victims the opportunity to become more active participants in the trials of their assailants.  But when the activists found legislators to be indifferent to their cause, they turned instead to California’s initiative power for a solution.”  (Berkeley Journal of Criminal Law, Volume 14, Issue 1, Article1, p 4)

It passed 56 percent to 44 percent, making California the first state to have a constitutional amendment that provides specific enumerated rights to victims of crime.  The California Supreme Court upheld the amendment in a 4 to 3 decision.

This is a case where those most familiar with issues of criminal justice formed and financed the coalition to advance the Initiative. Rather than being an instance of the majority taking the advantage of a minority, prop 8 (1982) is seen as a win for the victims of crime and brought California’s liberal exclusionary rules into conformity with narrower federal rulings.

California’s Direct Democracy Simplified

Here is a concise definition of California’s direct democracy courtesy of the Houghton Mifflin Company’s Weekly Reader

Do Citizens’ Initiatives make Legislators More Responsive?

Whether direct democracy achieves its goal of making state legislators in the United States more responsive to the concerns of the people is a question still debated today (See, e.g., Richard J. Ellis and Michael Nelson, editors, Democratic Delusions: The Initiative Process in America, 2002). Here are some quotes that sum up Ellis’ argument against the initiative process as it has been proposed on a national level:

“For all their failings, legislatures have the singular virtue of being capable of identifying, correcting, and learning from past errors…and so neither citizens nor legislatures see anything wrong or unusual in changing and improving current laws. …government policy enacted by the legislature is treated as the law of the land, not as the godlike voice of the people.The real problem with initiatives is not that they are more likely to produce poor public policy than are legislatures – though they may – but rather that mistakes made by initiatives are generally more difficult to correct. A successful initiative, unlike a legislative action, is widely assumed to be the authentic expression of the “voice of the people.” …Even the modest attempt to have voters reconsider their decision brings howls of populist outrage.”

“When activists proclaim that the initiative process “belongs to the people” they obscure the political reality behind a fog of populist platitudes. The initiative literally belongs to the few who write the measures, not to the many who vote. A national initiative would do little or nothing to empower the people; instead it would provide political activists, politicians, and special interests another way to get what they want.”

Direct Democracy in Switzerland

Switzerland has a population of just under 8-1/2 million. Each of the 26 sovereign cantons (states) has a population of under 500,000 except Zurich and Bern with populations slightly over one million, and Argau and Vaud with close to 500,000 each  The literacy rate of those age 15 and over is 99% compared to the United States at approximately 86%.  Direct participation in government begins with the self-determination of the individual,then to the municipalities, district, canton, and finally to the national level. Most of the power resides with the cantons and municipalities.

Citizens routinely propose measures for consideration by all levels of government, which if not acted upon by government, is taken to a vote of the people. What happens in practice is proposals by the people are analysed by the elected officials, who propose a similar but better formulated and written solution, which is then substituted for the citizen iniatitive, and eventually ratified by a vote of the people. It is a collaborative form of governing with very little dissent.  The percentage of successful initiatives is Switzerland is only about 10 percent.  Most initiatives are withdrawn from the legislature before they reach the ballot.

According to Richard Ellis (cited above) in Democratic Delusions: The Initiative Process in America, the most common reason for the Swiss consensus is that the legislature has promised or taken action that satisfies the proponents.

Ellis writes that:
 “The initiative in Switzerland is thus an integral part of the legislative process and is often used as a spur to get a majority in the legislature to heed the concerns of minority groups that have previously been thwarted in the assembly. Unlike in the United States, where the initiative process is a badly confrontational, zero-sum game, in Switzerland it is often employed to arrive at a consensus by facilitating legislative deliberation and compromise.”

The major difference between direct democracy in Switzerland and the U.S. is a higher degree of participation by a highly literate populace in Switzerland, and a low degree of interest in the United States, particularily at the local level where voter turnout often does not exceed 20%.

Here is an interesting article about Direct Democracy: Ties between Switzerland and the U.S. from the Library of Congress.

Who Really Controls the United States?

In the above article from the Library of Congress, James W. Sullivan (1848-1938) stated that the goal “of the direct democracy movement was to circumvent the legislators whom he considered “habitually” corrupt and non-responsive to the needs of the people in a society in the transition to an industrial country.”

Now we have evolved from an industrial economy to what has been described as retail and service economy. Even that description is in transition as most areas of the country are in a “healthcare and social service” economy.  As the debate over Obamacare rages on, Federal deficits soar, and both direct and representative democracy seem to have failed us.

Watch this animated map from the Bureau of Labor Statistics (HERE-opens in a new window)     Press PLAY to see the changes from 1991 to 2013

The debate over healthcare brings the centuries old argument about socialism into sharp focus except that no one dare utter the word socialism.  At this point in our national journey through time, there are more questions than answers. Representative Democracy has served us well in preserving personal liberty but can personal liberty survive in the face of socialism?  Certainly a large number of Western European Democracies are indulging in what is called Social Democracy. The trouble with incremental social change is that the time cycles are very long and by the time a society experiments with an idea many years can pass before the wisdom or the folly of the idea is clearly mainfest. Will Social Democracy evolve into Democratic Socialism as advocated by the self-styled Democratic Socialist Bernie Sanders?

The answer to that question depends on a literate populace participating in Representative Democracy, acting on unbiased information from a well informed media. In this way, the people will continue to control the United States.

The problem we now face appears to be a poorly educated populace acting on propaganda from a poorly educated media marching in lock step with a global elite whose wealth  individually exceeds that of many nations. As smart as the global elite are at making money, it is doubtful that they match the wisdom and knowledge of liberty that animated the Founders of our nation and the Swiss Confederation. The Western Democracies come in a close second in preserving personal liberty but they too face an erosion so imperceptively slow that one day the free nations will awaken and wonder what happend to freedom.

The Argument to Remove Marijuana (Tetrahydrocannabinols) from DEA Schedule 1

If you are a young healthy person, you should not be using marijuana.  It will make you more stupid than you already are if you become a heavy user.  But should you be prosecuted if you make the choice to use it?

Its continued classification in Schedule 1 by the DEA is based on 21 U.S. Code § 812 – Schedules of controlled substances, and its administration is subject to the complexities and corruption of the regulatory state. The claim that the regulatory state is corrupt is separate argument.

The findings required for Schedule I are as follows:

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

Marijuana clearly does not meet ANY of the three criteria.

Rather than argue that marijuana does not meet these criteria and should be placed in another schedule overlooks the question of whether 21 U.S. Code § 812 should not simply be amended by Congress to allow the states to deal with marijuana as the various states very ably deal with the question of alcohol.

The primary duty of the Federal Government is to protect the citizens of the U.S.  There are enumerated powers  given by the people through operation of the Constitution to Congress.  The Tenth Amendment places limits on the power of the Federal Government:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Indeed we have strayed far from these simple principles.  The alphabet soup of agencies and departments has become self-perpetuating:  ATF, CDC, CIA, DEA, DHS, DOD, DOE, ED, EPA, FBI, FCC, FDA, IRS, NSA, SSA, TSA.  We have sacrificed our liberty for the perceived security promised by governments.

Marijuana is a proxy for regaining our freedom, including the freedom to become intoxicated, just as single malt Scotch Whiskey is a proxy for freedom and intoxication. The era of prohibition from 1920 to 1933 ended when Utah was the last state to provide the 36th and final vote for ratification of the 21st Amendment.   It put away the sad legacy of the 18th amendment to the Constitution, which saw crime, gang violence, imprisonment, illicit use, and government corruption soar.

This time all that is required to regain some small freedom is for Congress to act. The states are doing a good job taking the place of illicit drug dealers.  The quality of the product has increased dramatically in states where marijuana is legal. Research is going on to determine what works and what people want.  Old people have a safe way to get help sleeping and cancer patients have help with their pain – all without expensive and dangerous drugs from conventional organized medicine.

In states where marijuana is legal, either medicinally or free-choice, use among adolescents is declining.  Teens and young adults are beginning to understand the risk to the developing brain and have freely chosen to abstain or at least limit their use.

The benefits are obvious:

  • Personal freedom
  • No prosecution
  • Better product
  • Money going to state instead of gangs.
  • Licensed dealers do not sell to minors.
  • Frees up law enforcement resources.
  • Dispensaries are safe.
  • Disputes with dispensaries can be settled in court, not in the street.
  • States can intervene if unsafe products need to be removed from commerce.

What is Moral Hazard?

Moral Hazard is predominantly an insurance industry term to describe the actions of an insured party who acts differently than he would if there were no insurance to mitigate the effects of his actions. An example could be a homeowner who smokes in bed, lights candles in the house, and lights off flambé in a dining room close to flammable drapes, all because he knows that the insurance will pay if the house burns down.

Moral hazard is where one entity takes more risk because another entity will pay for mistakes. A common explanation for why this happens is called “informational asymmetry.” It occurs when the parties in a contract have unequal information and one assumes risk without fully understanding the extent of the risk.

The government is a master at creating moral hazards. Taxpayers bear the brunt.

Consider these examples:

  • Obamacare required insurance companies to provide benefits that they knew were not sustainable, but they provided coverage anyway knowing that the government would bail them out. Taxpayers take the hit.
  • Because Obamacare allowed people to sign up after they became ill, the scheme became too expensive to maintain and it failed.
  • Banks took huge risks claiming that they were too big to fail. Frightened politicians bailed them out to “save the economy.” Taxpayers took the hit.
  • Politicians in Illinois vote for generous defined benefit pensions for public employees. Public sector unions encourage their members to vote for the politicians. The unions claim that their members paid their fair share into the pensions, yet since 1998 the percentage actually paid by government workers has increase 75% and that of taxpayers by 427%.  Taxpayers are responsible for paying off current unfunded liabilities plus all future increases as well.
  • Heavy handed regulation encourages people to engage in lawlessness and behavior to circumvent the regulation when the cost of compliance is onerous.
  • Asset Forfeiture Programs in the states and by federal authorities encourage police to prosecute people, not solely because of the nature of a crime, but because of the value of property that potentially can be seized. Civil forfeiture is a proceeding brought against the property rather a person convicted of a crime and has been used to enrich police departments and municipalities, undermining the legitimacy of law enforcement.  Whether the laws that permit such seizures are an example of moral hazard or simply encourage government corruption is open to debate.

An interesting column about civil forfeiture laws by George Will can be found HERE.

Some federal rules have changed since this was written and somewhat reduce the federal government’s complicity under what is called federal agency adoption of property seized by state or local law enforcement. We hope the states take a lead in eliminating ill-conceived civil forfeiture laws.

An article written by Benson, Rasmussen, and Sollars in April 1995 points out:

The Comprehensive Crime Act of 1984 is shown to have altered the incentives of police agencies by allowing them to keep the proceeds of assets forfeited as a result of drug enforcement activities. Empirical evidence is presented which shows that police agencies can increase their discretionary budgets through the asset forfeiture process.

The United States is experiencing a crisis in police-citizen relations. We believe it is urgent that trust in law enforcement and the rule of law be restored. Civil Forfeiture laws, although not well understood by the general public, represent a clear moral hazard or at worse facilitate police corruption.  How can anyone trust the police in a simple traffic stop if the officer starts asking about how much cash the occupants of the car are carrying?  The answer is very chilling to the average citizen and even more chilling to minorities.

The Institute for Justice provides a state-by-state report on asset forfeiture called Policing for Profit. Access their web site HERE and watch the video:

Reform of forfeiture laws is a cause that seniors can take a lead in promoting at the local, state, and federal level. Contact your representatives and ask how they feel about the topic.


According to Wikipedia, Nootropics are “drugs, supplements, or other substances that improve cognitive function, particularly executive functions, memory, creativity, or motivation, in healthy individuals.”

There are a few things you should know before wasting your hard earned money on anything that promises to make you smarter, more motivated, or reverses your impending dementia.  If you really are in the beginning stages of dementia, consult a good doctor and don’t buy stuff you see advertised heavily on Fox News Channel. The one that comes to mind is the jellyfish thing. We won’t mention the name because we are adverse to ugly tweets and lawsuits. If you are rich and healthy, give it a shot. Try ingesting strange things into your body to see how it works. You will be doing a clinical study with N=1.

Another word you should know, also defined on Wikipedia, is xenobiotic: “A foreign chemical substance found within an organism that is not normally naturally produced by or expected to be present within.” Drugs are xenobiotics as are many substances from so called natural supplements. Many things in food are xenobiotics. How your body processes these foreign substances and renders them harmless is very complex and not everyone handles them the same. Some people cannot handle gluten or lactose.

The next thing to learn about if you want to mess around with stuff to make you smart is the body’s cytochrome P450 mixed-function oxidase system.  It’s the body’s way of taking care of a lot of stuff the digestive tract, or other mechanisms didn’t handle completely. The P450 system is determined genetically. Something that you can handle well may kill someone else.  You can have genetic testing to see which isoenzymes you produce and how active they are, but it is largely a waste of time and money at this point.  Doctors deal with it empirically by trial and error, trying different drugs and adjusting the doses.

Let’s look at cytochrome P450 1A2, abbreviated CYP1A2. Its activity in the body helps detoxify xenobiotics such as caffeine, and acetaminophen.  Acetaminophen can kill you and you don’t know what a lethal dose is for you until you try it. Even then it may depend on what else you have been eating, if you are dehydrated, or if you eat your vegetables. Caffeine, like acetaminophen, can kill you and the lethal dose will vary. The median lethal dose (LD50) in humans is estimated to be 150-200 mg per kilogram of body mass.  Don’t depend on this number. It only kills half of those who overdose.

Back to nootropics, which we really never left:  Caffeine is a good one- pretty safe and a weak inhibitor and substrate of CYP1A2.  Some people can detoxify the stuff all day long and sleep like a baby. Others handle a cup in the morning. It’s not simply a matter of detoxifying it. Your genes determine sites in your body that it binds to, some well, others not so well. Boys don’t handle it as well as the ladies, generally.

What about modafinil?  It’s an inhibitor of CYP2C19, and inducer of CYP3A4 so if you are taking any drugs for therapeutic reasons you will probably mess up your treatment.  Besides it is a prescription drug and your doctor will need a diagnosis such as shift work-sleep disorder to feel good about giving you the prescription. But if you are old, have high blood pressure and are on a long list of drugs, the doctor will warn you about a myriad of drug interactions and suggest that you quit your night job.  Oh, but we forgot. You are over 50 and retired.  Right?

How does Donald (Trump) compare to Ronald (Reagan)?

Trump is a Different Man for Different Times

I arrived in sunny Southern California in 1963 eager continue my studies in physics after suffering two years of university in the frigid climes of upstate New York. I cannot tell you who was governor of New York during that time except to say that Nelson Rockefeller comes to mind and he had a wife named Happy.   Students then, at least the ones I knew, didn’t pay much attention to politics. When asked by a USC admissions director what I thought about the assassination of John F. Kennedy that occurred on the day of my interview, I carelessly replied that I didn’t think it made a lot of difference. Luckily for me he was an Orange County Republican and he decided that I belonged at USC.

In those days, USC was a safe place for complacent Republican sympathizers.  Occasionally a professor would ask uncomfortable questions about why Ronald Reagan was qualified to be governor. The safe answer was, and it turned out to be truer than anyone imagined, that Reagan knew how to choose smart people to actually run the government. Reagan is now widely acclaimed as the great communicator. He apparently was good at negotiating with dangerous world leaders as his legacy attests. But most of all, he surrounded himself as governor of California, and later as President, with very smart people, good people, moral people, and he left the country in the safe hands of his Supreme Court appointments.

The reason for the above background is to demonstrate that I was a witness to the Reagan Revolution so it is part of me. I watched Ronald Reagan in public life for 16 years. In spite of Reagan’s desire to cut the size of the federal government, split government substantially limited his agenda. He excelled in foreign affairs but his domestic agenda was stuck in the Great Society.

Donald Trump is no Ronald Reagan. I miss the affable Reagan smile and easy retort.

So how does Ronald compare to Donald?  So far it is too early to judge although everyone is anxious to do so.

The thing that immediately comes to mind is the Internet.

Reagan had television, a limited universe of talking heads, newspapers whose political biases were tame but well known, and a bunch of news magazines that were still able to turn a profit. The volume of information was manageable.  Narcissism was a word used by psychologists. People took pictures of OTHER people and sent the film off to be developed.

With the Internet, the volume of information has reached astronomical heights and its dissemination is cheap. One can conclude from the laws of supply and demand that political opinion has depreciated to the point of being virtually worthless. News outlets publish trash on page one, and later rescind it on page 6 with no apology.   On the ropes now is Time Magazine!

Is President Trump is a narcissist as the selfie crowd and a bunch of disgrundled psychiatrists are fond of proclaiming? A good argument can be made that a lot of psychiatry and clinical psychology is not based on solid science. Medicine is based on chemistry,  biology, and physics. Medical research, experimental, clinical, and epidemiological, rely on hard data that are evaluated mathmatically for statistical significance. The so-called soft sciences, anthropology, economics, epidemiology, geography, policy, psychology, and sociology may use scientific methods of inquiry but their discipline identifies better with scholars in the humanities. Narcisism only exists as a medical diagnosis because of the profoundly chaotic state of medical practice in the western world. DMS-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) is an example of the medical/government complex inventing diseases to treat. Narcissism is one such invented disease and would be better characterized as Greek mythology.

Political acrimony is either at an all time high or we just know about it because of the Internet and its handmaiden, cable news. A 24-hour news cycle repeats the same lame stories as if by repetition they will achieve credibility.

So far Donald Trump appears to be choosing good people, at least one great new Supreme Court justice, and he is slowly filling the ranks of circuit judges. Hopefully he will get it right.  Some of his excellent cabinet people are quietly laying the groundwork for the revolution Reagan was unable to complete.

In the meantime my European friends are turning their sophisticated noses up at our gaff and twitter prone President who is breaking all the rules of political correctness.


Melania, we’re out of toilet paper. Bring me some more international agreements.


The above cartoon appeared in the March 6, 2017 online issue of OBV Online and is used here as an illustration of German sentiments. The caption on the OBV Website reads, “International agreements are taken very seriously in the White House. Cartoon: Bengen”