The Supreme Court Keeps the Constitution Up-to-Date

Once again the Supreme Court has taken a step to keep the Constitution up-to-date.

On February 20, 2019, the Court unanimously ruled that the prohibition against excessive fines contained in the Eighth Amendment applies to state and local governments.  The case was Timbs v. Indiana, 586 U.S. (2019) .  The Court held that the Due Process Clause of the Fourteenth Amendment requires the states (and local governments) to observe the Eighth Amendment’s prohibition against excessive fines to the same extent that the Federal Government does.

Amendment 8
Excessive Bail, Fines, and Punishments Forbidden

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The simplicity of the individual amendments contained in the Bill of Rights gives courts wide latitude to interpret laws as the country grows and new laws adapt to ever changing conditions. Similarly as conditions change, some previous laws become obsolete and have to be discarded.

Nevertheless the fight for Liberty cannot be passively left to the courts and legislatures. Individuals have to be aggressively vocal in order to both restrain and compel our elected representatives. When representatives fail, the courts are often our last, albeit expensive, resort.

But it can be very expensive and difficult for individuals, and even many well-funded organizations, to compel or restrain their elected representatives. And when elected representatives create laws resulting in injustice, it is equally expensive and difficult to get the courts to overturn a law.

For Tyson Timbs in Indiana, the right combination of events combined to result in a favorable verdict from the Supreme Court.

Indiana is the only state that outsources prosecutions for civil forfeiture to independent law firms on a contingency basis. This creates a moral hazard for law firms to go after easy cases with potentially big payoffs when valuable property is seized. The triviality of Timbs’ case, his huge forfeiture, and the inherent injustice of Indiana law made for an attractive test case.

The Institute for Justice asked the Supreme Court to hear the case. Both the American Civil Liberties Union and the United States Chamber of Commerce filed friend of the court briefs supporting Timbs.

The verdict was unanimous with the liberal minority siding with the conservative majority.

Constant Fight

“The price of liberty is eternal vigilance” is a quote usually attributed to Thomas Jefferson. But as Anna Berkes at the Jefferson Foundation contends, “Everybody was saying it, but nobody knows who first said it.”  As nice as it sounds, the phrase does not adequately express the cost of Liberty.  More than just vigilance, the cost of Liberty is a constant fight.

The Constitution is a document that recognizes the natural tendency of people to try to dominate over others.  It places restraint on governments that inevitably infringe on the rights of individuals but it does not totally prevent heavy handed regulation, excessive fines, or even cruel and unusual punishment. Unfortunately when unjust practices are put in place by government, it often takes a lot of time and expense to correct them.  The fight against the excessive fines involved in civil forfeiture has lasted at least as long as the failed War on Drugs.

War on Drugs

High minded people elected to government service invent all kinds of programs and laws, purportedly to make the lives of citizens better. The War on Drugs was one such program. It is increasingly obvious that many of its provisions have failed. People were and still are being needlessly jailed for non-violent drug crimes. Lives are being ruined in the Land of Liberty while other nations whose constitutions do not explicitly guarantee such Liberties have dealt with the same problems in a more humane way, treating drug abuse as a public health problem rather than criminal activity.

The excessive fines involved in civil forfeiture were aimed at curbing the traffic in illegal drugs. One could argue convincingly that civil forfeiture made the police act in their own perceived self-interest instead of in the name of justice.  Even after the State of New Mexico passed a state law limiting civil forfeiture, the City of Albuquerque continued to confiscate cars from innocent owners, not even the ones charged with a crime.

Eventually law enforcement will get the message now that the Supreme Court has spoken. Local jurisdictions will have to reassess their policies and inevitably seek new ways to finance their operations instead of claiming that assets seized in civil forfeiture saved the taxpayer money.

Civil Forfeiture is Still Legal

All the Supreme Court said in its ruling was that civil forfeiture could be unconstitutionally excessive depending on the circumstances. Property used to commit a crime can still be seized and the owner will have to fight in court to get it back.  Sometimes proving the case against an individual is too difficult for a prosecutor, so the individual goes free while the property seized is forfeit or tied up in expensive court proceedings.

This list of state laws may not be totally up-to-date but it shows how entrenched civil forfeiture laws are in the United States: LIST HERE

Citizens Should Lobby Legislators to Reform Asset Forfeiture Laws

If you love the Rule of Law and revere the Constitution, you should inform yourself about the insidious nature of civil forfeiture laws.  Such laws can make crooks out of otherwise honest police. It’s easy to rationalize that the seized property is saving the taxpayer money, or it is only hurting the bad guys.

The Founders were well aware of John Locke’s writings. Locke  argued in his Two Treatises of Government that political society exists to protect “property”, which he defined as a person’s “life, liberty, and estate.”  That is still the obligation of our governments, but lazy or uninformed citizes have allowed the creeping cancer of over-legislation to infringe on our Liberties and allow governments to over-reach.

Do you know that in many jurisdictions it is illegal to cut down a tree on your own property?  It’s time to wake up and stop goofy self-serving do-gooders from achieving their Orwellian dream.  Don’t be a sheep!   “Four legs good, two legs better”

Useful Resources

We will occasionally add to these and perhaps take some down if they do something stupid.

The Drug Policy Alliance is an organization that is carrying on the fight to stop government from hurting the citizens from whom it constitutionally derives its power.

The Institute for Justice is an Arlington Virginia based non-profit organization whose tag line is “Litigating for Liberty.”  They are worthy of your support.

Martin Luther King, Jr. | American Patriot

Martin Luther King was a True Patriot

The vapid chattering class complains that the Founders were racist slave holders, that the Constitution says black men counted as only 3/5 of a person, and that this somehow discredits our entire foundation. To discredit the Declaration of Independence and Constitution on the basis of a faulty understanding of history is doing a great disservice to the legacy of Martin Luther King. King was a true patriot who looked to our founding documents as a fountain of inspiration and hope. He correctly understood that the Constitution is an aspirational document, a statement of what will be and must be, not a memorialization of what is set in stone.

There is little reason to doubt that King understood Jefferson’s dilemma.  Jefferson clearly detested slavery but he had many difficult choices. He could work for a union of the colonies to found the United States, or he could work to abolish slavery; he could not have both.

Thomas Jefferson, who famously wrote “all men are created equal,” also wrote:

“There must doubtless be an unhappy influence on the manners of our people produced by the existence of slavery among us. The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it; for man is an imitative animal. This quality is the germ of all education in him.” (Notes on the State of Virginia, Query XVIII: Manners)

Jefferson realized that slavery was a cancer  on society but he also knew it would take time and education to correct the evil.  Looking back, Jefferson undoubtedly knew the long history of slavery stretching back millennia. Looking forward and knowing that his current generation had learned by the example of slavery, Jefferson could only imagine its eventual demise.  During his life he made a number of proposals to gradually eliminate slavery, recognizing the almost insurmountable economic barriers at his time.

Immediate gratification is an attribute of children and adolescents.  Wise men know restraint and patience.  Undoubtedly Dr. King knew this because he chose the path of restraint and non-violence to achieve his goals. His goals are not yet achieved but his legacy serves as an example to those who continue the task.

Enumeration Clause (Census Clause)

Let’s put the 3/5 of a person problem to rest. Article 1, sections 1 & 2 of the Constitution outlined how representatives to the House of Representatives would be apportioned among the states.  The new nation being formed was a tinderbox of dissension.  It was only through compromise that the nation got a start and left the question of slavery to be settled during the Lincoln presidency and a terrible civil war.

The Enumeration Clause says:  “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

This section was later modified by the 14th amendment, section 2. It was purposely left vague. The founders envisioned a Constitution that would change over time. It does not say that a black man is 3/5 of a person! It talks about free Persons. Stay tuned to this language as the 2020 census counts free Persons living within the “Union.”

The Negro and the Constitution

The Negro and the Constitution is the title of  Martin Luther King, Jr.’s winning high school essay.  It clearly shows that Dr. King looked to the Constitution as well as to his faith to achieve the equality that they promise.  King saw Lincoln’s Emancipation Proclamation as the embodiment of the equality promised,  but not immediately delivered, by the Declaration of Independence and Constitution.

Martin Luther King, Jr. (1944)

“Negroes were first brought to America in 1620 when England legalized slavery both in England and the colonies and America; the institution grew and thrived for about 150 years upon the backs of these black men. The empire of King Cotton was built and the southland maintained a status of life and hospitality distinctly its own and not anywhere else.

On January 1, 1863 the proclamation emancipating the slaves which had been decreed by President Lincoln in September took effect–millions of Negroes faced a rising sun of a new day begun. Did they have habits of thrift or principles of honesty and integrity? Only a few! For their teachings and duties had been but two activities–love of Master, right or wrong, good or bad, and loyalty to work. What was to be the place for such men in the reconstruction of the south?

America gave its full pledge of freedom seventy-five years ago. Slavery has been a strange paradox in a nation founded on the principles that all men are created free and equal. Finally after tumult and war, the nation in 1865 took a new stand–freedom for all people. The new order was backed by amendments to the national constitution making it the fundamental law that thenceforth there should be no discrimination anywhere in the “land of the free” on account of race, color or previous condition of servitude.

Black America still wears chains. The finest Negro is at the mercy of the meanest white man. Even winners of our highest honors face the class color bar. Look at a few of the paradoxes that mark daily life in America. Marian Anderson was barred from singing in the Constitution Hall, ironically enough, by the professional daughters of the very men who founded this nation for liberty and equality. But this tale had a different ending.

The nation rose in protest, and gave a stunning rebuke to the Daughters of the American Revolution and a tremendous ovation to the artist, Marian Anderson, who sang in Washington on Easter Sunday and fittingly, before the Lincoln Memorial. Ranking cabinet members and a justice of the Supreme Court were seated about her.

Seventy-five thousand people stood patiently for hours to hear a great artist at a historic moment. She sang as never before with tears in her eyes. When the words of “America” and “Nobody Knows De Trouble I Seen” rang out over that great gathering, there was a hush on the sea of uplifted faces, black and white, and a new baptism of liberty, equality and fraternity. That was a touching tribute, but Miss Anderson may not as yet spend the night in any good hotel in America. Recently she was again signally honored by being given the Bok reward as the most distinguished resident of Philadelphia. Yet she cannot be served in many of the public restaurants of her home city, even after it has declared her to be its best citizen.

So, with their right hand they raise to high places the great who have dark skins, and with their left, they slap us down to keep us in “our places.” “Yes, America you have stripped me of my garments, you have robbed me of my precious endowment.”

We cannot have an enlightened democracy with one great group living in ignorance. We cannot have a healthy nation with one tenth of the people ill-nourished, sick, harboring germs of disease which recognize no color lines–obey no Jim Crow laws. We cannot have a nation orderly and sound with one group so ground down and thwarted that it is almost forced into unsocial attitudes and crime. We cannot be truly Christian people so long as we flaunt the central teachings of Jesus: brotherly love and the Golden Rule. We cannot come to full prosperity with one great group so ill-delayed that it cannot buy goods. So as we gird ourselves to defend democracy from foreign attack, let us see to it that increasingly at home we give fair play and free opportunity for all people.

Today thirteen million black sons and daughters of our forefathers continue the fight for the translation of the 13th, 14th, and 15th amendments from writing on the printed page to an actuality. We believe with them that “if freedom is good for any it is good for all,” that we may conquer southern armies by the sword, but it is another thing to conquer southern hate, that if the franchise is given to Negroes, they will be vigilant and defend even with their arms, the ark of federal liberty from treason and destruction by her enemies.

The spirit of Lincoln still lives; that spirit born of the teachings of the Nazarene, who promised mercy to the merciful, who lifted the lowly, strengthened the weak, ate with publicans, and made the captives free. In the light of this divine example, the doctrines of demagogues shiver in their chaff. Already closer understanding links Saxon and Freedman in mutual sympathy.

America experiences a new birth of freedom in her sons and daughters; she incarnates the spirit of her martyred chief. Their loyalty is repledged; their devotion renewed to the work He left unfinished. My heart throbs anew in the hope that inspired by the example of Lincoln, imbued with the spirit of Christ, they will cast down the last barrier to perfect freedom. And I with my brother of blackest hue possessing at last my rightful heritage and holding my head erect, may stand beside the Saxon–a Negro–and yet a man!”

Chronological Snobbery Endangers the Constitution

The Constitution of the United States is our Enduring Social Contract. Drawing on the ideas of great thinkers such as Thomas Hobbes, John Locke, and  Jean-Jacques Rousseau, our Founders devised a way to preserve our Liberty while surrendering as little as possible of our Natural Rights to the State in exchange for safety. They devised an excellent balance and our social contract has achieved the results the founders undoubtedly sought, yet the Constitution is under constant attack. The attack always seems to be in the direction of surrendering more of our freedom to the State in exchange for the State taking care of our every need, not just protecting our freedom.

Recently the attack is also from people who want to extend the rights we have under the Constitution to immigrants coming into the country illegally.  By the very act of entering illegally such people demonstrate that they are not a party to the Social Contract. The Rule of Law is an integral part of our Social Contract.

Chronological Snobbery

We are compelled to ask, “What is it about human nature that encourages succeeding generations to reject the wisdom of their ancestors?”  The answer may lie in a common flaw in the way people think.

Unfortunately human beings are so biased in their opinions, beliefs, and ideas that without great effort to recognize and overcome their biases, it is very difficult for most people to make rational, objective decisions.  What among our many biases would prompt some citizens and even their elected representatives to call for radical changes to the foundation of our exceptionally successful civilization?

The answer may lie in a concept first made popular by C.S. Lewis in his autobiographical work, Surprised by Joy: The Shape of My Early Life, published in 1955.

Lewis coined the phrase Chronological Snobbery  (chapter 13, p. 207–208) to describe why he originally subscribed to atheism, believing that the science of the modern world had rendered religion obsolete. He defined chronological snobbery as “the uncritical acceptance of the intellectual climate of our own age and the assumption that whatever has gone out of date is on that count discredited.”

When Lewis recognized that his chronological snobbery was hindering his quest for meaning in his life, he sought to contain it and eventually found a joyful refuge in the religion that he earlier rejected. That Lewis found an answer to his own life questions does not mean that others would not reach different conclusions based on their own biases or rejection of recognized biases.

Chronological snobbery fools people into thinking that old ideas are obsolete. A closer examination of most subjects reveals that there are very few original ideas, just new people selling old ideas relabeled as their own. The aphorism “There is nothing new under the sun,” while not strictly true should compel people to give correct attribution to prior beliefs before claiming a new interpretation of an old idea as totally their own. It is healthy to explore mature ideas and retain what history has proven to have enduring value.

Anecdotally it appears that young people are swayed by chronological snobbery more than older people. Many are being swept up in the so-called Progressive Movement. The implication by those who have highjacked the word progressive is that progress implies change in a better direction. This is the big lie. The change they envision encompasses discredited experiments from the past. Marxism and Socialism have failed. Not only have they failed, they have brought misery and destruction to millions of people.

Democratic Socialists and “Nordic Socialism”

The current mob of progressives or “democratic socialists” as they call themselves say they want Nordic Socialism, not Venezuelan Socialism, nor any of the other failed socialist schemes. It’s Socialism “Lite!”

Their public pronouncements show that they are not students of history or economics. They naively advocate free tuition for all, single payer healthcare,  and forgiveness of student loans. It sounds like a post adolescent wish list from recently graduated and under employed students who flunked economics 101.

They fail to acknowledge the degree of governmental corruption that accompanies the failed socialism of Venezuela, Cuba, and North Korea.

The United States is a much more diverse nation than the Nordic States. It is also the home of the world’s reserve currency, not to mention the world’s policeman. The U.S. is home to some of the world’s largest corporations with their accompanying lobbyists.  And the United States ranks more than a 10 points below the Nordic States on Transparency International’s global corruption index.

We are becoming more corrupt. That itself places our Constitution in danger, but that is a discussion for another time.

The Nordic states are small with a combined population of less that 30 million people. They all have market economies, strong labor unions, and a large welfare sector including healthcare financed by heavy taxes. Corruption is low. Military spending is low. There is little social unrest. Crime is low. They share a unique social morality that is not universally shared in the United States. They are compassionate capitalists, NOT Socialists.

Democratic Socialism

Wikipedia has become the gold standard of Internet definitions.  (that is also a discussion for another time).

“Democratic socialism is a political philosophy that advocates political democracy alongside social ownership of the means of production with an emphasis on self-management and democratic management of economic institutions within a market or some form of decentralized planned socialist economy.”

Most of the young ill-informed people who call themselves Democratic Socialists probably do not agree with the Wikipedia definition. Bernie Sanders has had more time to think about it and should have a more nuanced view of the subject,  yet his web site definition of Democratic Socialism is the same laundry list of problems that need to be solved, but fails to address the painful economic realities.

The political reality is that some people want to get elected by promising free stuff to poor people with the false promise that the rich people will pay for it.

If  that happens, all will become poor, expect for the very rich who will always hide their wealth behind corporations, lobbyists, judges, and hard assets.

There is little discussion in the U.S. about the means of production coming under social ownership.  Venezuela nationalized its oil industry and the result is disaster. We shouldn’t have to keep repeating the question about what happens when governments own and run the economy. HERE Steve Forbes explains why governments don’t run economies very well.

The Nordic countries have strong property rights and an economic environment that encourages free enterprise. This is done in the face of very high taxes. That is what Bernie and his acolytes have in mind.

 The Founders Knew that Change Would Be Necessary

Benjamin Franklin was one of the principle architects of the Constitution. He did not see the venture through rose colored glasses. He knew that changes would be made to adapt to the times.

His greatest concern was the character of the people charged with making the changes. That should be our concern also.

In arguing for ratification of the Constitution, Franklin wrote as follows:

“I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said “I don’t know how it happens, Sister but I meet with no body but myself, that’s always in the right-Il n’y a que moi qui a toujours raison.”

In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity. Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administred.” (Constitutional Convention – 1787)

George Washington also knew that things would need to be changed over time. He was also acutely aware of the danger of ideologically driven political parties. In his Farewell Address Washington gave several insightful warnings:

“Here, perhaps, I ought to stop. But a solicitude for your welfare, which cannot end but with my life, and the apprehension of danger, natural to that solicitude, urge me on an occasion like the present, to offer to your solemn contemplation, and to recommend to your frequent review, some sentiments; which are the result of much reflection, of no inconsiderable observation, and which appear to me all important to the permanency of your felicity as a People. These will be offered to you with the more freedom, so you can only see in them the disinterested warnings of a parting friend, who can possibly have no personal motive to bias his counsel. “…

“However combinations or associations of the above description [political parties and other combinations] may now and then answer popular ends, they are likely in the course of time and things, to become potent engines, by which cunning, ambitious and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reigns of government; destroying afterwards the very engines which have lifted them to unjust dominion.”…

“Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles however specious the pretexts.—One method of assault may be to effect in the forms of the constitution alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown.”

James Madison also had warning about how Congress could spend money and eventually corrupt the system if left unchecked. The so-called Welfare clause of the Constitution originally place restraint on Congress. The Supreme Court subsequently ignored Madison’s warning. We now have 20+ trillion in debt with no end in sight except for ominous implications of disaster.

“If Congress can employ money indefinitely, for the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, the establishing in like manner schools throughout the union; they may assume the provision of the poor…. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited government established by the people of America.”

Chronological Snobbery Revisited

Chronological Snobbery,  like the rest of the cognitive biases, encourages us to make bad decisions while all the time letting us think that we are absolutely correct and our way is the only way.  While we celebrate our modernity and think we have all the answers, half of all the studies you read may be wrong.

John P. A. Ioannidis wrote an excellent essay about the subject, which does not tell  you which studies or  news is correct, but it does raise the warning that we are all probably wrong about a lot of things we believe, So before imposing our ideas on others, maybe we should resist hopping on the most popular current bandwagon. We should resist giving good money to finance some pressing issue. Step back and remember that just because we exist at this moment in time (if such a thing as time is real), we are no more relevant that smart people in the past, who are now dead as we all soon will be.

Christmas is the Season to Be Jolly and Exhibit Ignorance

Every year at Christmas time, a new flock of educators, administrators, and political activists feel compelled to reveal their ignorance about the Establishment Clause of the U. S. Constitution and push what they feel is the correct place for Christmas in an ever evolving religious landscape.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”.

To be fair, the Establishment Clause is not as simple as it appears in the Bill of Rights.

The Founders’ Perspective (Simplified)

The Founders were concerned about doing away with government’s support of the Established Church of England, the supreme governor of which is the monarch. For over a thousand years  Christian Churches remained part of the political establishment in Europe affirming Monarchs’ divine right to be kings. The Founders ended that cozy relationship on the Federal level. It took many years for the 14th Amendment and the Supreme Court to eliminate religions’ meddlesome relationship with people at the state level.

The 14th Amendment granted citizenship to all persons born or naturalized in the United States. It was an incremental step in providing equal protection under the laws to all people including former slaves.

Even after the Founders plainly said that church and Federal Government must be separate, state legislators continued to push religious agendas in state government. They did so because a majority of the people wanted it, and it was perfectly legal to do so.

The Texas Constitution said, and still says, “”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.” (Article 1, Section 4 – underline is ours)  Like many archaic state laws, this clear violation of the now fully incorporated first amendment is not being enforced.

The Scopes Monkey Trial is now history but there is still a tendency for special interests to try to instill their beliefs in legislation.  In the end, belief and religion are inseparable. Unfortunately legislation based on belief alone is very prevalent.

The new heretics are the “Deniers,” those who do not follow or accept the wisdom of prevailing belief.

How can a Christian Holiday Possibly be Constitutional?

At the time of the founding of our Republic, Christmas was not a national holiday. When it became a holiday in 1870, it was fashioned around gift giving and the nostalgia of immigrants yearning for their old customs.

In colonies heavily influenced by Calvinist Christian dogma, Christmas was banned  during much of the 17th century. Massachusetts passed a law in 1659 to punished Christmas observers with a fine of five shillings, now equivalent to about $31.76.

Gradually the commercial aspects of a year-end holiday eroded religious opposition. Christmas was well on its way to becoming a beloved secular holiday.  Still it did not happen quickly, and for reasons that are difficult for some to understand, the fight continues.

Courts Keep the Constitution Current

Over the years courts have had to rule about how restrictive the Establishment Clause is.

There are many who argue that any relationship between government and religion must be totally banned. Even saying Merry Christmas in the work place must be banned! Now for some, saying Merry Christmas demonstrates how brave they are to buck the political correctness police.

Where is the fine line between encouraging religion and actively impeding the “free exercise thereof…?”

The Constitution of the State of Wyoming in its Declaration of Rights has solved one of the questions relating to government financial support of religion; they forbid it.

§019. Appropriations for sectarian or religious societies or institutions prohibited.

No money of the state shall ever be given or appropriated to any sectarian or religious society or institution.

The Federal Government has been less disciplined in its largesse, doling out money to all manner of charitable institutions, many of which have strong ties to religious entities. Then it becomes necessary for citizens to question the line between helping religion, remaining neutral, or impeding it.  Courts have decided these questions in an evolving web of complexity. The complexity of the question may provide limited cover to the annual display of ignorance about Christmas.  School administrators are not expected to be experts in Constitutional Law, but they should know the basics. Here are a few of the basics.

Establishment Clause – Supreme Court Decisions

Nativity Scenes: Lynch v. Donnelly, 492 U.S. 573 (1989).    A Nativity scene, as part of a larger public holiday display, was declared unconstitutional by both a District Court and the Court of Appeals.  The Supreme court reversed the lower courts and explained the rationale behind its ruling: “The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. ” (underline ours)

When the Nativity Scene contained the proselytizing phrase, “Gloria in Excelsis Deo! ” it was declared unconstitutional in County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989)

Christmas Trees and Menorah: County of Allegheny v. ACLU   “…menorah display does not have the prohibited effect of endorsing religion, given its “particular physical setting.” Its combined display with a Christmas tree and a sign saluting liberty does not impermissibly endorse both the Christian and Jewish faiths, but simply recognizes that both Christmas and Chanukah are part of the same winter holiday season, which has attained a secular status in our society.  

Free Exercise Clause

In Cantwell v. Connecticut, 310 U.S. 296 (1940), for the first time the Supreme Court held that the peaceful expression of beliefs is protected from infringement by both the Federal Government and all of the States (Incorporation).  The free exercise of belief includes both belief in religion and non-belief in religion.

Examples of  Recent Overzealous Prohibitions

Every year at Christmas time, news reports abound about people instituting restrictive policies for holiday observations.

A Principal in the Elkhorn School District (Omaha, Nebraska) banned Christmas decorations at her school. She was quickly corrected by her administrators.  Among the banned items were candy canes because the “J” shape clearly denotes Jesus!  As an on-going personnel matter, the District cannot comment on the matter.  We can only speculate that her youth and ignorance of Constitutional Law got her in trouble with the old people.

A Washington State senior center reportedly banned religious Christmas expression including saying “Merry Christmas,” singing  Christmas Carols, or displaying Christmas cards in any of the complex’s common areas, including doorposts of the apartments. The building manager of Providence Place in Chehalis, WA may have incorrectly told a resident that the display of such items violated HUD regulations.  The same manager is reported to have allowed the display of a menorah in the common area while requiring a resident to remove a Mezuzah from her doorframe. The weasel words, “may,” “reportedly,”  and “reported” are used here because it is hard to know the truth of news articles nowadays. Management now denies the claims by residents who wish to remain anonymous.

Here is the truth about organizations that get HUD money

HUD Policy in Support of Religious Symbols During Holiday Season

Merry Christmas Texas

In 2013, the Texas State legislature passed HB 308 which guarantees First Amendment rights to everybody involved in Winter Celebrations in the State’s school districts.

WINTER CELEBRATIONS.
(a) A school district may educate students about the history of traditional winter celebrations, and allow students and district staff to offer traditional greetings regarding the celebrations, including:
(1) “Merry Christmas”;
(2) “Happy Hanukkah”; and
(3) “happy holidays.”
(b) Except as provided by Subsection (c), a school district may display on school property scenes or symbols associated with traditional winter celebrations, including a menorah or a Christmas image such as a nativity scene or Christmas tree, if the display includes a scene or symbol of:
(1) more than one religion; or
(2) one religion and at least one secular scene or symbol.
(c) A display relating to a traditional winter celebration may not include a message that encourages adherence to a particular religious belief.

The author of the bill decided to help create an environment in the schools that allows everybody to celebrate in traditional ways without fear of criticism when his son came home from school and told him that his class decorated a holiday tree with holiday ornaments.

The Texas law appears to anticipate any criticism by following Supreme Court rulings, some of which were cited above.

Nevertheless the  ACLU criticized the law because it says the law lacks a required secular educational purpose, even though paragraph (a) states the avowed educational purpose is to learn about traditional winter celebrations.

The reality is that Winter Celebrations have become highly secular.  An additional educational purpose of such a law could be to reaffirm the wisdom of the Establishment and Free Exercise Clauses of the First Amendment.

Winter Celebrations

There exist evidence that the Christian Church chose the date of December 25 to commemorate the birth of Jesus because it conveniently coincided with earlier celebrations around the time of the winter solstice. The history of choosing that date and controversies over its selection are beyond the scope of the present discussion.

The English word Christmas is also subject to debate. Deriving from Old English Cristes-messe, meaning Christ’s Mass, the origin and meaning of the word Mass itself in the Christian sense is speculative.

As noted above, there were times when Christmas itself was outlawed by Christian communities because it did not commemorate a historically accurate day for the birth of Christ.  Establishing such a date has always been impossible because of the lack of extra-scriptural references to an event lost in time.

Every year there is a lot of  discussion among some Christian groups to “put Christ back in Christmas.”   Certainly devout Christians could do this on a personal observational basis, but to force the issue into the secular realm would only encourage the annual assault on the word Christmas.

The celebration of the Winter Solstice dates back to ancient times.

Stonehenge is a prehistoric monument in Wiltshire, England. Its primary axis aligns with the sunset at the winter solstice. Not much can be authoritatively known about prehistoric people but the fact is they built impressive structures that show obvious astronomical features. It is logical to assume that they celebrated astronomical events and probably related their observations as having something to do with gods.

Newgrange is another very large structure in England that aligns with the winter solstice at sunrise.

A few well documented ancient winter solstice celebrations include: Saturnalia, the most popular of Roman festivals; Dōngzhì Festival (Chinese: 冬至) celebrated throughout east Asia; Inti Raymi, celebrated in winter (June) in Peru; Shab-e Yalda, celebrated by Iranians, originally to celebrate the triumph of of the sun god, Mithra, over darkness;  Tekufat Tevet.” ( “תקופת טבת”), one of the four seasons of the year recognized by Talmud scholars.

Anciently just about everybody celebrated the seasons as a demarcation of activities that governed their ability to provide food and shelter, and stay alive.

How to Prove that you are not Ignorant at Christmas Time

The U.S. Constitution, Supreme Court decisions, Lower Court Decisions, and undoubtedly other unimpeachable authorities all say it’s OK to observe Christmas, Hanukkah, Ramadan, Kwanzaa, Diwali, the Chinese New Year, and the Winter Solstice with no concern that the First Amendment and its Establishment Clause will be in danger.  The politically correct crowd seem eternally intent on interfering with the Free Exercise Clause.  They are miserable sheep, and some say insufferable Grinches.

To be on the safe side, you may consider consulting an excellent guide published by the Rutherford Institute, entitled  “Twelve Rules of Christmas.”  The choice of the number 12  has nothing to do with the 12 Apostiles, Jewish Numerology, or donuts.

CLICK ON THE IMAGE FOR A PDF VERSION OF THE RULES

Practical Advice to Get Along and Enjoy Christmas

As practical advice, be aware of when Chanukah begins and tell your Jewish friends “Happy Hanukah,” especially if your Hebrew is not very good and you cannot pronounce Chanukah. ( חנוכה)

An interesting fact about Chanukah is that the date shifts around because of the Lunar Calendar. It has nothing to do with a solstice. It lasts eight days from the 25th day of Kislev to the second day of Tevet, and involves lots of food and fun.

The way Court decisions have come down over the years, one could argue that Hanukah saved Christmas. The healthy secular nature of Hanukah has rubbed off on Christmas displays rendering them sufficiently secular.

If your intended audience for a Winter Holiday Greeting doesn’t speak English very well, try to determine which of these is most appropriate: Feilz Navidad; Feliz Natal; Buon Natale; Bon Nadal; (yes, these all deal with a birth but they will be happy you tried); Joyeux Noël; Fröhliche Weihnachten; Vrolijk Kerstfeest; God Jul; Glædelig Jul; Nadolig Llawen; Wesołych Świąt (This is Polish. Guaranteed to make any Pole happy).

While there are Christian Arabs who may appreciate, eid milad mjyd! (عيد ميلاد مجيد!), stick with English and say Seasons Greetings!  That was what President Eisenhower put on his Holiday Cards.

Otherwise if you are in WalMart in Texas, say Merry Christmas.  They may reply Happy Holidays and smile at you.  The smile is worth the exercise.  Everybody should lighten up.  For most of the country, Christmas is a miserably cold time of year. A little Christmas Cheer (secular, of course) goes a long way to bring people together. So say Merry Christmas, and spend your money wisely, if not abundantly.

The Constitution guarantees that you are free to exercise your religious belief,  but you are not entitled to interfere with that same right afforded to all other citizens.

Contrary to what the New York Times opined in 2016, there is a war on Christmas, but it is only a small part of an on-going war on the First Amendment, and particularly free speech.  Nowhere is this war more apparent that on college campuses where the free exchange of competing ideas is being challenged by an intolerant cabal of administrators, instructors, and compliant juveniles.

The First Amendment is about Toleration. Look it up.

If John Milton were alive today and could opine about the assault on free speech, all he would have to do is define oligarchy as university administrators who tolerate the banal assault on free speech.

image of John Milton-1644

John Milton (1644)

What should ye do then, should ye suppress all this flowery crop of knowledge and new light sprung up and yet springing daily in this city? Should ye set an oligarchy of twenty engrossers over it, to bring a famine upon our minds again, when we shall know nothing but what is measured to us by their bushel? Believe it, lords and commons! they who counsel ye to such a suppressing, do as good as bid ye suppress yourselves; and I will soon show how. If it be desired to know the immediate cause of all this free writing and free speaking, there cannot be assigned a truer than your own mild, and free, and humane government; it is the liberty, lords and commons, which your own valorous and happy counsels have purchased us; liberty which is the nurse of all great wits: this is that which hath rarified and enlightened our spirits like the influence of heaven; this is that which hath enfranchised, enlarged, and lifted up our apprehensions degrees above themselves. Ye cannot make us now less capable, less knowing, less eagerly pursuing of the truth, unless ye first make yourselves, that made us so, less the lovers, less the founders of our true liberty. We can grow ignorant again, brutish, formal, and slavish, as ye found us; but you then must first become that which ye cannot be, oppressive, arbitrary, and tyrannous, as they were from whom ye have freed us. That our hearts are now more capacious, our thoughts more erected to the search and expectation of greatest and exactest things, is the issue of your own virtue propagated in us; ye cannot suppress that, unless ye reinforce an abrogated and merciless law, that fathers may dispatch at will their own children. And who shall then stick closest to ye and excite others? Not he who takes up arms for coat and conduct, and his four nobles of Danegelt. Although I dispraise not the defence of just immunities, yet love my peace better, if that were all. Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties. (John Milton,  in a speech before Parliament in 1644)

Is the U.S. Constitution Outdated?

We keep hearing from snarky post-adolescents that the Constitution is outdated. They routinely demean the notion that our founding fathers are worthy of our respect. The fact that the Founders risked their lives to establish our nation means nothing to the current crop of narcissistic historical revisionists.

The Founders created the Republic when slavery was common worldwide. Indeed Brazil was the last country in the Western Hemisphere to abolish slavery on May 13, 1888. The entire world struggled with slavery. It is unrealistic to expect that our Founders could have magically and immediately abolished slavery when they were dangerously involved in creating the social contract that would eventually allow the abolition of slavery.

Immediate gratification appears to operate in the lives of the vocal proponents of changing the Constitution. Such gratification is impossible to apply retroactively.

The Constitution Has Endured

The Constitution has endured through the formative years of the Republic with growing pains that included bitter conflicts over slavery, a national bank, single party rule, the War of 1812, Aaron Burr killing Hamilton over an early succession plot, rampant patronage, the Civil War, and innumerable other scandals that would fill our current crop of pundits with rage.

They see the world through the false constructs of political correctness and fashionable morality. Their lack of historical context diminishes their credibility.

Who Are the Current Mindless Pundits?

A true pundit is someone who offers an opinion or commentary based on a profound knowledge of the subject. Many scholars know enough about a subject to offer a well reasoned opinion but are seldom afforded an opportunity.

Unfortunately there exists an over-abundance of people with questionable doctorates in pseudo sciences, or worse yet pathetically weak bachelors’ degrees in  journalism or English, whose shallow analysis floods the news cable networks. Their sole objective is to entertain and gain advertisers.

They are not pundits, nor are they worthy of our respect. Yet their passionate drum beat that the Constitution is no longer relevant has gained some traction and must be refuted.

The Constitution Is Constantly Being  Updated

The original document that we call the Constitution is contained on six handwritten pages. The first four pages are the base text, page five is a letter of transmittal from the Constitutional Convention to the Congress, and page six is the Bill of Rights.

The remaining 2,850 (approx.) pages of the “Constitution Annotated” prove that it is a living document, which has undergone many changes when necessary. The entire 2,882 pages of the Centennial Edition of the Constitution of the United States, Analysis and Interpretation including Supreme Court Decisions can be downloaded HERE.

The Supreme Court Is the Last Word in very Few Cases

The Supreme Court is the last word in the cases it hears but there are thousands of decisions by lower courts that reaffirm the Constitution and the protections that it affords citizens.

In the federal system, decisions from 94 district courts can be appealed to 12 Circuit Courts of Appeal plus the  Court of Appeals for the District of Columbia. Of all of the cases reviewed by the Circuit Courts of Appeal, only about one-tenth of one percent (0.1%) are accepted by the Supreme Court for review.

The Constitution is constantly being made relevant to our time by the approximately 725 federal judges serving in the 94 district courts, 13 appeals courts, and the Supreme Court. These judges know the Constitution and the case law that supports a wide web of constitutional guarantees.

The sheer inertia built into federal law, and what some call congressional dysfunction, make it difficult to capriciously change laws.  Even in areas such as immigration law, where changes are clearly needed, change will come slowly, carefully, and eventually will conform to the Constitution.

Fortunately amending the Constitution is even more difficult, making emotional demands for gun control or abolition of the electoral college difficult for advocates to achieve.

Unanimous Decisions by the Supreme Court

In the 2016-2017 term of the Supreme Court approximately 57 percent of decisions were unanimous and only 15% were split, 5-4, decisions.

During his confirmation hearing in 2005, Chief Justice Roberts affirmed that he intended to work toward a consensus on the court. He has subsequently reaffirmed his commitment to consensus on the Court when he addressed the 2018 Stein Lecture at the University of Minnesota. The video runs 1 hour, 15 minutes.

Judicial Independence is the Guard Against the Transitory Will of the People

An Important Upcoming Supreme Court Case

Every case taken up by the Supreme Court is a reaffirmation of our Liberty.

We have previously commented about how civil forfeiture can constitute a moral hazard for law enforcement agencies.

Civil forfeiture traces to ancient Roman and medieval English law; both made objects used to violate the law subject to forfeiture to the king. It was allowed because anciently it was often difficult to physically detain  guilty individual who had fled to a foreign land so property used in the commission of a crime was seized.

Now civil forfeiture is a leading method for imposing economic sanctions against narcotics traffickers who sometimes are in a foreign jurisdiction.  Increasingly however, significant, and some say excessive, property is taken away from persons accused of relatively minor drug offenses.

The case is  Tyson Timbs and a Land Rover LR2 v. State of Indiana, 17-1091.

The Supreme Court has agreed to look at whether the 8th Amendment clause forbidding “excessive fines” applies to the states. The First, Second, Fourth and Sixth Amendments have been fully incorporated to the States via the Fourteenth Amendment Due Process and Equal Protection Clauses. The Fifth Amendment is almost fully incorporated; the Third and Eighth Amendments are partially incorporated; the Seventh Amendment is unincorporated; the Ninth and Tenth Amendments are not applicable.

If the Court decides for the plaintiff in this case it will contribute to fully incorporating the Eighth Amendment at the state level.

image of honor guard with flag

Why do we Commemorate Veterans’ Day?

Memorial Day or Decoration Day is the U.S. federal holiday to remember people who died while serving in the  armed forces. Veterans’ Day on the other hand is to express gratitude to those both living and dead who served honorably in the armed forces during times of peace or times of war.

In contrast to the purported abuse of veterans returning from Vietnam, today’s veterans seem to be enjoying an exaggerated and somewhat politically correct display of gratitude from all quarters of society. That is not a bad thing. Gratitude is a noble human emotion that enriches an entire society. Perhaps society now needs to display a slightly exaggerated degree of gratitude to make up for past selfishness, and to teach the concept of gratitude to younger generations.

Is it possible that the reports of hippies spitting on soldiers returning from Vietnam in the early 1970s were “fake news?”  The New York Times addresses this question in an opinion piece from  2017.  As vitriolic as the anti-war rhetoric was during the Vietnam conflict, most of it was directed at political leaders; nevertheless, there is little doubt that isolated instances of abuse were directed at individual soldiers.

Homecoming: When the Soldiers Returned From Vietnam was a book by Bob Greene that explored this issue.

Wounded Warriors

We now talk about wounded warriors and heroes in a way totally foreign to the rhetoric surrounding the Vietnam Era, the period from February 28, 1961 to May 7, 1975.

During the Korean and Vietnam conflicts, it was the body count that got all the attention. And as the body count increased, opposition to the war reached a crescendo.

Battlefield survival among American soldiers was only marginally better than during the two world wars. Undoubtedly many wounded soldiers in Korea or Vietnam would have survived if they had the battlefield care experienced in our current middle east engagements.

The Numbers

Comparing casualties of America’s wars can be misleading. A “casualty” is a combatant  lost through death, wounds, injury, sickness, internment, capture, or through being missing in action. In the American Revolutionary war and Civil War, far more people died from disease than were directly killed in battle. Accurate counts are impossible.

A useful metric that demonstrates the technological efficiency of war is the ratio of deaths to the number of soldiers deployed. When muskets, swords, and infantry were deployed, death from infection after the battle contributed to the overall death toll. Our deadliest war, the War between the States, had between 618,000 and 750,000 deaths. By contrast, drones, aircraft, rockets, and armament reduced the death toll in recent engagements in Iraq and Afghanistan to under 7,000.

Iraq and Afghanistan1:378
Vietnam1:54
World Wars I and II1:40
War between the States1:5

Thank You for your Service

As a veteran from the Vietnam era, I feel a bit uncomfortable when people say, “Thank you for your service.”  I went into the Air Force more for professional development and to avoid being drafted than as a call to patriotic duty.

I enlisted because my deferment ended at graduation and I may have been drafted into the Army. Everyone knows the cushy jobs are in the Air Force. So when people say, “Thanks.” I think to myself, “I went in to avoid the draft and possibly be sent to a really bad spot in Vietnam and maybe not return.”  It was an easy decision.

In addition I got some excellent training under almost luxury conditions. The Air Force paid for two babies. I get a free grave and headstone someday. VA loans for several houses have more than compensated me for my “service.” Home Depot even saves a parking space for me if I get there early enough to beat out the other Vets.

But to all veterans out there whose military experience was not as selfishly motivated as mine, and especially to veterans who returned from service damaged in some way, “Thank you for your service, and may a grateful nation compensate you appropriately.”

Oath to Support and Defend the Constitution

All members of the U.S. Military take an oath to support and defend the Constitution of the United States. It has been my experience that citizens who have served in the armed services take this oath very seriously and continue to honor the oath for the rest of their lives.

Image of military oath to defend the constitution

5 U.S. Code § 3331 – Oath of office

Federal civil service employees take the same oath to support and defend the constitution. Since the Constitution guarantees our Liberty and enumerated rights, why should we fear a bureaucracy sworn to protect the Constitution?

When the Internal Revenue Service, or the State Department and possibly even the FBI act with partisan disregard for the rights of all citizens, what remedies do the People have?  The military protects us from foreign enemies, but when the enemy is within, who protects us?

Indeed it may be argued that the greatest actual threat to our Liberty comes from within, from a poorly educated populace who vote for politicians who pander to their basest instincts.

As we often do in these pages, we make an appeal to authority to bolster the claim that such a threat to Liberty comes from within. Senator Eugene Joseph “Gene” McCarthy, a Democrat from Minnesota and opponent of the Vietnam War said, “The only thing that saves us from the bureaucracy is inefficiency. An efficient bureaucracy is the greatest threat to liberty. – Time magazine (12 February 1979)

Veterans Continue to Serve

It’s pretty obvious that some politicians are shameless political hacks regardless of their political party. Others, however, demonstrate a devotion to service and the country. Among them are the  75 members (possibly 76) of the House of Representatives who are veterans, 18 Democrats and 57 Republicans.  It is they, our elected officials and veterans among them, who must be chosen wisely to protect our Liberty.

At the beginning of the 115th Congress, there were 102 Members (18.8% of the total membership) who had served or were serving in the military, one more than at the beginning of the 114th Congress (101 Members), but six fewer than at the beginning of the 113th Congress (108 Members).

According to lists compiled by CQ (Congressional Quarterly), the House as of September 11, 2018, has 76 veterans (including two female Members, as well as one Delegate); the Senate has 17 veterans, including two women.  These Members served in the Korean War, the Vietnam War, the Persian Gulf War, and combat or peacekeeping missions in Afghanistan, Iraq, and Kosovo, as well as during times of peace. Seven House Members and one Senator are still serving in the reserves, and six House Members are still serving in the National Guard. All of the female veterans are combat veterans.

The number of veterans in the 115th Congress reflects the trend of steady decline in recent decades in the number of Members who have served in the military. For example, 64% of the Members of the 97th Congress (1981-1982) were veterans, and in the 92nd Congress (1971-1972), 73% of the Members were veterans.

Lt. Com. Dan Crenshaw Elected

Lieutenant Commander Dan Crenshaw (Retired) is the Congressman-elect to replace retiring Congressman Ted Poe in Texas’ 2nd Congressional District.

His military service as a Navy Seal took him to Afghanistan where an IED blast damaged is sight; nevertheless he went on to complete two deployments, once to the middle east and again to South Korea. He left service in 2106 with two Bronze Stars (one with Valor), the Purple Heart, and the Navy Commendation Medal with Valor.

Dan’s father worked in the petroleum industry and moved the family all over the world including Colombia and Ecuador where Dan became fluent in Spanish. He is a graduate of Tufts University (bachelor’s) and Harvard University (Masters of Public Administration). At age 34 he is Texas’ youngest congressional representative. With his excellent military and academic training, he will be a strong voice for Texas in Congress.

Crenshaw won his Congressional race with 53.4 percent of the vote over his Democrat opponent. He became famous because of the abuse heaped upon him by a lame Saturday Night Live skit.

This video from Fox News shows why we celebrate Veterans’ Day and why 74% of citizens support and have confidence in the military.

Senator Susan Collins’ Extraordinary Speech

Her Speech Transcends Petty Bickering

The Founders of our Republic devised a remarkable system of government that has withstood many fiascos similar to the embarrassing displays of our current crop of partisan ideologues.  George Washington was a genius, a fact lost on generations of Americans who don’t even know who the protagonists were in our War for Independence. In fact such people don’t even know what the word “protagonist” means.

George Washington warned about the advent of political parties in his time.

“However combinations or associations of the above description [political parties] may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion. .”  –  Washington Farewell Address, September 17, 1796

Susan Collins also warned of the corrosive effects of mindless ideology.

“We must always remember that it is when passions are most inflamed that fairness is most in jeopardy. ”

“In our intense focus on our differences, we have forgotten the common values that bind us together as Americans.”

Remarkable Speech

Image of Senator Susan Collins

Senator Susan Collins, (R) ME

Senator Susan Collins’ speech on the floor of the Senate in support of Judge Kavanaugh was remarkable in many aspects. It carefully and thoroughly dismantled the arguments being fed to the obedient sheep who dutifully demonstrate at the behest of puppet masters whose true motives remain invisible to them.

Roe v. Wade is the rally call but the puppet masters have an eye on a far bigger prize.

One of those puppet masters, in a rare glimpse into his motives, reveals why he stays in the shadows:  “I shall not spell it out here because it would interfere with my flexibility in carrying it out…” If this snippet arouses your curiosity, you may follow it HERE.

But for now, the focus is on the clarity of Senator Collins’ speech.

Senator Collins’ Speech Reveals Meticulous Preparation

Her speech revealed the great extent to which she and her staff went to fulfill her duty as a Senator when required to give her advice and consent to the appointment of Brett Kavanaugh to the Supreme Court.

She started by giving an accurate description of the extensive opposition to the nomination characterized by special interest groups who whipped their followers into a “frenzy by spreading misrepresentations and outright falsehoods.”

Senator Collins then outlined the methodical process she used to evaluate Judge Kavanaugh’s qualifications. Her analysis of his judicial record is particularly riveting.  Rather than commenting on every aspect of her analysis, you may read it in THIS  [opens on PDF file] transcript of her speech, or you may watch the video of the speech below.

Outline of Key Points

  1. Seven-Sky v. Holder – Judge Kavanaugh rejected a challenge to the ACA.
  2. Judge Kavanaugh’s approach toward the doctrine of severability is narrow.
  3. Marbury vs. Madison, Youngstown Steel vs. Sawyer, and The United States vs. Nixon are three of the greatest Supreme Court cases in history according to Kavanaugh. Affirms separation of powers.
  4. Brown vs. The Board of Educationalso a check on presidential power.
  5. Hamdan vs. The United States – Judge Kavanaugh ruled against his former boss, President George W. Bush.
  6. Roe v. WadeKavanaugh expressed the view to Senator Collins that, “precedent is not merely a practice and tradition, but rooted in Article 3 of our Constitution itself.”
  7. Brown vs. The Board of Education overruled Plessy vs. Ferguson, correcting a “grievously wrong decision” to use the judge’s [Kavanaugh]  term.
  8. Judge Kavanaugh affirms belief in stare dicisis.
  9. Roe v. Wade was decided 45 years ago and reaffirmed 19 years later in Planned Parenthood vs. Casey. The Judge further reaffirmed his belief in precedent.
  10. Senator Collins dismantles the accusations made agains Kavanaugh: “But certain fundamentally legal principles about due process, the presumption of innocence, and fairness do bear on my thinking, and I cannot abandon them.”
  11. Christine Ford was betrayed by Senate Democrats.
  12. Senator Collins hopes that, “that your [Senate Democrats] callous act has turned this process into such a dysfunctional circus that it will cause the Senate and indeed all Americans to reconsider how we evaluate Supreme Court. If that happens, then the appalling lack of compassion you afforded Prof. Ford will at least have some unintended positive consequences.
  13. “… of the six objectives they [the Founders] invoked in the Preamble to the Constitution, the one that they put first was the formation of a more perfect union.”

Video of  Senator Collins’ Entire Speech

image of john locke

John Locke Should Be Counted among the Founding Fathers

I woke up this morning thinking about John Locke. He had great ideas that are as relevant today as they were when he wrote them.  Waking up thinking about John Locke probably makes me appear really weird to to all those people who wake up thinking only about running to the bathroom and getting a cup of coffee.

I took care of those things too and am still thinking about John Locke. Actually I am not thinking so much about Locke as I am about my grand-kids. They need to know about ideas and few are as important as John Locke’s ideas.

For the sake of my grandchildren I decided to post links to these excellent videos about John Locke.  Then I will send the links to their cell phones and suggest that they watch them. Then I’ll call them and ask what they think. I bet they like the added attention. I imagine that it gives them something to talk about with their friends, such as how “I have the craziest grandma in the world…” Hopefully in 30 years they will be telling their own kids about John Locke and remember that I thought it was important.

Before going to the videos, look at THIS page by Michael Long. Then download this PDF file for the handouts that Michael Long uses in his group discussion.

Video from theschooloflife.com

Life,Liberty and the Right to Own Property

At this point it is time for grandma to get out of the way and let the kids follow the Internet trail to wherever their ultrashort attention spans lead them.  I have been criticized for wanting to dump the whole pile of hay on the hapless horse all at once when every body knows that horses founder when overfed. Well, that’s a metaphor but maybe nobody really knows that anymore.

It’s the End of the World as We Know It.

Shallow Perceptions of the Emotional Left

Der Spiegel Cover, Nr. 46, 2016 “The End of the World” (as we know it)

There are profound temperamental and emotional differences between people on the political right and political left.   Researchers at Tel Aviv University and the Interdisciplinary Center in Herzliya studied the relationship between emotions and political ideology. Their results conclusively demonstrated that emotion is a greater motivational force for those on the political left.

The election of Donald Trump brought cries of anguish from around the world. Normally sane people broke down in uncontrolled sobbing. Magazines and newspapers around the world erupted into a circulation bonanza of criticism. Of course that emotional reaction came from the Left and it persists to this day.

Der Spiegel, Germany’s weekly news magazine similar to Time Magazine, has employed the artist Edel Rodriguez to draw pictures for some of its more provocative covers featuring Donald Trump.

Edel emigrated from Cuba to the U.S.  as a child.

The Washington Post quotes Edel as saying in response to Trump’s perceived immigration bias, “I was nine years old when I came here, so I remember it well, and I remember the feelings and how little kids feel when they are leaving their country… I remember all that, and so it bothers me a lot that little children are being kept from coming to this country.”  He channels his discomfort into profitable artwork for the covers of Time Magazine, Der Spiegel, The New Yorker, among many others.

The Left’s problem is a pervasive herd mentality that feeds into emotion and immediate perceptions, without asking what may be lurking beneath the deep waters of intentional distraction. The Art of the Deal told them what to expect but they fail to believe it, possibly because Trump didn’t write it himself:

“I call it truthful hyperbole. It’s an innocent form of exaggeration…,” Trump said in his book, first published in 1987.

Trump’s ghost writer Tony Schwartz doesn’t give himself enough credit for revealing the real Donald Trump. Nobody voted for a saint during the 2016 election; they voted for a disruptor and they got what they voted for.

Schwartz, who admittedly knows Trump well, stated, “I genuinely believe that if Trump wins and gets the nuclear codes there is an excellent possibility it will lead to the end of civilization.” (New Yorker Magazine, July 25, 2016)  Another champion of the Left succumbs to the seductive appeal of righteous indignation and irrational, emotional hyperbole! Belief based on emotion, although human, is a weak substitute for reason.

The Right turn out the Lights and Go Home

In contrast to the emotional and occasionally militant activism of the Left, most people who identify with the Right seek reason in quiet contemplation.

Nowhere is this contrast more evident than Left’s hysteria when Trump was elected as compared to the sedate reaction from the Right when Barack Obama was elected. The closest thing I can compare it to was the deafening silence that enveloped Brazil in 1998 when France won the World Cup.

Image of Rpnaldo from Wikipedia

Ronaldo – 2013

I was in Belo Horizonte for a party to celebrate Brazil’s inevitable victory over France. Then came the end of the world as they knew it.

Never before had I witnessed mass grief to the extent I did when Brazil lost to France 0-3. Everyone immediately went home, the lights went out, and silence enveloped the entire city. I can only imagine the profound sorrow in the Bento Ribeiro neighborhood of Rio de Janeiro where superstar footballer Ronaldo Luís Nazário de Lima was born in 1976.

By Monday morning Brazilians went back to work, fortunate that they didn’t have a good reason to party all night.

Of course the loss of a futebol game pales in comparison to the election of a U.S. President. After 20 years, most older Brazilians still remember the defeat and the subsequent win over Germany in 2002.  A subsequent win soothes the pain of defeat. Ronald Reagan’s win in 1980 more than made up for the defeat of Barry Goldwater in 1964.

When Barack Obama was elected, the Right turned out the lights and quietly went to bed. The next morning they started licking their wounds and tried to figure out where the man from nowhere came from.

Some circulated memes about post turtles.  Web sites started up detailing the remarkable coincidence that Google searches about Obama’s lies were directed to pro Obama web sites. Of course the dominant press was ecstatic, displaying Obama with a halo, confidant that a new millennium of peace and prosperity was about to  be bestowed upon a righteous nation.

Rather than indulging in self-pity, the reaction from the Right was, as it usually is, well…more Conservative. Restrained, Inward looking. Maybe Obama will learn enough through on-the-job training to do a reasonably satisfactory job. Maybe he really will defend the Constitution as he swore he would.

It’s the End of the World as We Know It. And I feel fine…

While the Left may believe that the Right savaged Obama and fought him at every turn, his presidency for the most part was uneventful. He got his Obamacare. It devastated the healthcare system and Obama received no criticism from the Left for the broken promise: “If you like your doctor, you can keep your doctor.”

The power of the police state grew unabated. There were a few little scandals that the third estate ignored. Otherwise the Republican Congress following the Democrat losses of 2010 simply applied the brakes.

Obama’s massive expansion of federal regulations through executive orders is being quietly reversed by Trump. The individual mandate of Obamacare has finally been eliminated.  The healthcare system is still a mess and the national debt is out of control.

There are hopeful signs that the international situation vis-à-vis North Korea may find a resolution.

By Their Fruits…

Timothy L. O’Brien is cited in the New Yorker Magazine as saying, that Trump’s book is a “nonfiction work of fiction.”  The same has been said of the Bible. Nevertheless, fiction or non-fiction, the Bible wisely says in Matthew 7:15-20:

15 “Beware of false prophets, who come to you in sheep’s clothing, but inwardly they are ravenous wolves. 16 You will know them by their fruits. Do men gather grapes from thornbushes or figs from thistles? 17 Even so, every good tree bears good fruit, but a bad tree bears bad fruit. 18 A good tree cannot bear bad fruit, nor can a bad tree bear good fruit. 19 Every tree that does not bear good fruit is cut down and thrown into the fire. 20 Therefore by their fruits you will know them.

While some on the Left cry that the Trump administration is the end of the world, and others fret that it is the end of the world as they know it, could it be that the world as they know it isn’t so great?  Do they really like an economy that doesn’t grow because of insufferable regulations?   We and our constitutional federal republic have been slowly sinking into the depths of political uncertainty through the efforts of a powerful entrenched bureaucracy not answerable to Congress. It is time for the Executive to team up with Congress to return us to Constitutional Government.

What is it exactly that the Left fears from Donald Trump?  Trump has the nuclear codes. He is commander in chief of the armed forces.  In addition to his Constitutional powers, he is the Big Bluffer in Chief. The Twitter Master. A Language Assassin. Innocent exaggeration.

Overlooking the obviously unusual personality that vexes many on the Right as well as everyone on the Left, Trump is making progress solving problems that his more conventional predecessors have failed to solve.

He has vowed to “drain the swamp.”

He repeatedly says that being friends with other countries is a good thing, not a bad thing. He may make peace with North Korea ending the potential danger of nuclear weapons in the hands of a dictator bent on self preservation.

He is not going to “nuke” anyone!

By his fruits you will know him!

And I Feel Fine

New Guest Editor joins AltARP

The good old boys at AltARP allowed me to become a guest editor with the promise that I would not embarrass them or the members who proudly wear the emblem of the antique goat that shows they are trying to separate themselves from the sheep.

Let me tell you where I am coming from. I am female both genetically and mentally. My parents were Democrats. I was determined to go to college so I got jobs while in high school and college, and I earned enough to get a degree in accounting. Then I started to meet successful women in business.  OK, some successful guys too, and they never groped me.

I learned a bunch of new ideas that I was never exposed to when I lived at home.  Suddenly I found that I couldn’t discuss some subjects when I went home for Christmas, so I learned to keep my mouth shut.

I read Ayn Rand during my college years. I learned not to read “The Art of Loving” by Erich Fromm while riding the bus in Los Angeles during the 1960’s. There you have it. You know roughly how old I am now. But I didn’t buy into the hippy thing. I actually admired and supported the boys who returned from Vietnam.  Mostly admired! I was too young to support them financially but I was nevertheless very interested in them. I even found one who dragged me out of Los Angeles to have babies in Texas courtesy of the United States Air Force.

Freedom and Liberty

I’m not old enough to retire so I may not actually be a member of AltARP. I think they are pretty lenient about who joins as long as you tilt right more than left.  I think you have to tilt a bit to the right in order to get your head around the idea of Liberty and why we have to fight to preserve it. Why do some people want the government to take care of them even at the expense of their liberty and freedom?  There is a difference between liberty and freedom, you know.  Freedom is to be free from something while liberty is free to do something. Freedom is being free from despotic oppression. Freedom of religion, or of the press, or any other freedom, is the  release from restraint. Jefferson talked a lot about freedom and liberty. It pays to read and think about these things.

So, you get freedom when you are released from jail.

Ask Martha Stewart who was convicted of a stupid stock trading technicality. Now she has the liberty to pursue her stellar career, but still has to lawyer up and look over her shoulder in case some ladder climbing despotic prosecutor decides to put a notch in his belt by putting away a high profile target.  In her case the prosecutor was the now infamous James B. Comey who was the United States attorney for the equally infamous Southern District of New York.  I will forever admire Martha Stewart but will wait until the jury is in about James Comey, whom on a gut level I detest, but perhaps only because of his insufferable preening and arrogance.

Unhappy Obama Years

“I was not a happy camper under Obama”

I was not very happy during the Obama years (2009-2017) as I saw Liberty under constant attack.  Obama was not particularly bright when it came to business. Like a leaf blowing in the wind, he went along with whatever was politically expedient. He signed innumerable executive orders that directed federal agencies to impose onerous regulations that almost wreaked the economy.

To be fair, I was not very happy with some of George W. Bush’s (2001-2009) stuff either, but it takes new things a while to show themselves for what they really are.  The Sarbanes-Oxley Act of 2002 was a Bush thing. So was the USA PATRIOT Act.  What a stupid name!  Secret courts are somehow patriotic?

Obama had a jobs council headed by GE CEO Jeff Immelt. They were smart people who understood the issues. The council recommended changes to the stifling Sarbanes-Oxley law that was responsible for reducing the number of IPOs smaller than $50 million from 80 percent of all IPOs in the 1990s to 20 percent in the 2000s. The changes to Section 404 compliance were designed to free smaller companies from the burden of difficult accounting internal controls.  Great. It was a small help but not enough.

The really insidious things that happened under Obama and continue to this day are the people he appointed to various positions in government, now known as the Swamp under President Trump !  The SEC, Securities and Exchange Commission, and FINRA, Financial Industry Regulatory Authority, went from being regulatory bodies to becoming prosecutorial bodies.

Perhaps this is only my perspective and I am admittedly biased. I don’t know of any research to back up this assertion.  Ask your stock broker about it.

The laws and regulations governing the regulatory bodies didn’t change too much but the people running them did change.  The SEC used to have securities attorneys watching over public companies. Under Obama the ranks of the SEC were filled with prosecuting attorneys.  You can imagine what their influence was and still is.  Slowly some of these prosecutor type people migrated over to FINRA.

There used to be a robust network of small broker-dealers who served the needs of very small public companies.  The prosecutor mentality at FINRA took over and now the small broker-dealers are in shambles fighting to survive. If you invest in a small startup company and get a stock certificate as evidence of your investment, try to get it deposited into an account so you can eventually trade it!  The large brokers won’t accept paper certificates. The small ones will require an expensive paper trail including a legal opinion from an attorney. Legal opinions can cost several thousand dollars, which is often more than you paid for the stock!

Read this explanation from Spartan Securities:  HERE –  (opens in a new tab)

Bureaucratic Assault on Liberty

Punishing people proven guilty  of a crime in a court of competent jurisdiction should be the sole goal of law enforcement.  Yet the administrative state routinely charges and punishes people for alleged infractions of administrative rules by levying huge fines.  There is little defense against these charges because of the great cost of mounting a defense. Wealthy people like Mark Cuban charged with insider trading, as was Martha Stewart, can generally defeat questionable charges; still it can cost millions of dollars to do so.

There is no such crime as insider trading and no law defining or prohibiting it. The Securities Exchange Act of 1934 broadly defines and outlaws securities fraud but never employs the phrase “insider trading.”  Over the last 84 years, the administrative state has promulgated “rules”  the transgression of which are punished under the general term of securities fraud. And securities fraud is pretty much whatever the SEC says it is. Little people charged with such infractions are generally unable to mount a full defense so they stipulate to a settlement while neither admitting nor denying the charges.  As large as some administrative fines are, they are far less than going to court in spite of the fact that most who do so win their cases.

One unfortunate employee of a large corporation saw strangers with suits walking into the corporate offices.  He concluded that something must be happening. Not knowing whether whatever was happening was good or bad, he guessed that it could be good and went out and bought a bunch of his employer’s stock.  He was not an officer or director and had no direct knowledge of any deal. His good guess got him into trouble and he paid a huge fine and disgorgement of his “ill gotten” gains. It almost makes you want to move to a freer country like Switzerland.

The greatly simplified Swiss Eidgenössische Finanzmarktaufsicht (FINMA) securities and banking regulatory authority is independent of the Swiss national government. It answers directly to the Federal Assembly (Bundesversammlung). It does a remarkable job of helping banking and securities related businesses in Switzerland to thrive.  It is a resource, not an adversary, but it does have to occasionally refer people to the federal or canton governments for prosecution.

I once asked a Swiss friend about securities laws in Switzerland. He said that Swiss law basically outlaws fraud and named only Criminal Law (article 161 PC) that defines who can be charged for the “misuse of privileged material non-public information.”  Shareholders cannot be charged; only “members of the board of directors, the management, the auditors or as agents of a company or its subsidiary or its parent company, as member of a government agency or as a public servant, or as auxiliary person of the afore-said,” can be charged and few ever are.

I have ranted on long enough for an introductory piece, but here is a parting shot:

I am not happy about the Patriot Act, how the sunset provisions were made permanent, and about the abuses that are just now becoming apparent. I am sure I will want to write more about it in the future.  So while they talk about the secret FISA court, the judges who sit on the FISA court are not secret.  The FISA Judges are listed below.

The Federalist  has recently revealed that Rudolph Contreras has a personal relationship with disgraced FBI agents Peter Strzok and Lisa Page. You can read about it HERE.

“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” — Benjamin Franklin, Historical Review of Pennsylvania (1759)

Current Membership – Foreign Intelligence Surveillance Court – click on individual judges for a short resume, which opens in a new tab.

JudgeJudicial District /CircuitDate DesignatedTerm expires
Rosemary M. Collyer (Presiding)District of Columbia / D.C.March 8, 2013March 7, 2020
James E. BoasbergDistrict of Columbia / D.C.May 19, 2014March 18, 2021
Rudolph ContrerasDistrict of Columbia / D.C.May 19, 2016May 18, 2023
Anne C. ConwayMiddle District of Florida / 11thMay 19, 2016May 18, 2023
Raymond J. DearieEastern District of New York / 2ndJuly 2, 2012July 1, 2019
Claire V. EaganNorthern District of Oklahoma / 10thFebruary 13, 2013May 18, 2019
James P. JonesWestern District of Virginia /4thMay 19, 2015May 18, 2022
Robert B. KuglerDistrict of New Jersey / 3rdMay 19, 2017May 18, 2024
Michael W. MosmanDistrict of Oregon / 9thMay 04, 2013May 03, 2020
Thomas B. RussellWestern District of Kentucky / 6thMay 19, 2015May 18, 2022
F. Dennis Saylor IVDistrict of Massachusetts / 1stMay 19, 2011May 18, 2018