Category Archives: Contemporary Politics

State Sanctioned Make-Believe

Children love to play ‘make-believe’.  Younger children are often enamored with inanimate but active objects like bulldozers and tractors.  We’ve probably all seen toddlers zoom around the room with their arms straight out to the side pretending to be an airplane.  As they get older, make-believe becomes more complex and social.  Children join together in groups of two or more and pretend to be cops and robbers, cowboys and Indians or mommy or daddy.

Though not perfectly accurate, ‘make-believe’ is very descriptive of the cognitive process involved.  Children use their imaginations to ‘make’ (as in, to create or fabricate) a ‘belief’ for their purpose of play and entertainment.  What they create isn’t really a belief so much as a fiction which they will themselves to accept on a temporary basis as a predicate to their preconceived plan to have fun.  Adults naturally understand what they’re doing and often play along to be helpful and encouraging.  Importantly, neither the children nor the adults have any misconception about what is real during any part of this process.  The children always remain aware that they aren’t actually airplanes, cowboys or parents and the adults understand that the children are not deluding themselves or anyone else.

The ‘make-believe’ associated with the gender identity issue is quite different.  The belief created isn’t a temporary acceptance of an acknowledged fiction.  Rather, it is the embracing of one’s personal feeling or desire as a proxy for objective reality. The ‘belief’ created is long term and adopted as an individual’s chosen ‘reality’ rather than momentary and adopted only to serve a passing purpose.  Regardless of what one might think of an individual’s decision to delude himself in such a manner, those who value liberty and individualism have little problem leaving him to his decision so long as it isn’t being imposed on anyone else.  But the calculus changes when he or his agents take action to impose his chosen false sense of reality upon others.

California recently enacted the “Gender Recognition Act” which will allow citizens of that state to change the gender on their birth certificates and driver’s licenses without having undergone any treatment or surgery.  Further, those who do not identify as either male or female will now be able to choose a third option – “nonbinary” – essentially declaring themselves to be genderless or gender ‘neutral’.

Some may suggest that California is doing no more than the adults in the childhood make-believe scenarios – trying to be helpful or encouraging to those who’ve chosen to delude themselves as to the biological reality of their gender.  But the State of California is not an individual adult acting only for himself in the context of an isolated event of childhood play.  It is the state and experience well demonstrates that the actions of the state often have much wider implications than might first appear.  The state’s willingness to give its imprimatur to that which is objectively untrue rightfully gives rise to questions about what might follow with respect to policy initiatives, funding, or even the potential of protected class status for those who ‘believe’ themselves to be that which they are not.  Should such wider implications materialize, the liberties of citizens who choose not to affirm such objective falsehoods may be jeopardized or disadvantaged.

Winston Smith, the lead character in George Orwell’s “1984”, got into trouble with the government because he wrote that “freedom is the freedom to say two plus two equals four.”  His antagonist and representative of the state was a party official named O’Brien.  O’Brien showed Winston four fingers and tortured Winston until he finally acknowledged an objective falsehood – that O’Brien was holding up five fingers.  It’ difficult to imagine that California will resort to torture to force it’s citizens to acknowledge the objective falsehoods it has chosen to countenance as reality.  The potential coercions we could more realistically envision are gentler but no less an affront to individual liberty.  Torture isn’t necessary for tyranny to exist.  Torture is only one means of denying a person his individual rights.  It would be tyrannical for California to take any action to affect an individual citizen’s willingness or ability to affirm objective reality.  Just as “freedom is the freedom to say that two plus two equals four”, freedom is the freedom to say that a boy is a boy or that a girl is a girl.

California’s residents should be on guard.  Now that it has officially sanctioned make-believe on official documents, its citizens should be alert for any indication this official position may spill over into other government actions which aren’t as benign as gender designations on driver’s licenses and birth certificates.

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Citizens, Government And Big Data

Classically, the only proper functions of government are 1) to provide security from outside threats, 2) to administer justice and 3) to secure individual rights.  A more recent development has been the general acknowledgment that government also has a significant role with respect to infrastructure such as road, airports and utilities.

Of course, our government has gone far beyond these well-defined limits and has inserted itself into virtually every aspect of our personal and economic lives.  Practically everything is regulated in some manner –  the rate of pay for which we may agree to work, the specifications of our homes and vehicles, the information we must be provided on food and merchandise, the types of light bulbs we can use – the list is so long it’s beyond the capacity of any one person to complete.

As frustrating as such examples are, there are circumstances in which government interference in society goes beyond such typical meddling, big brotherisms and into a nightmarish arena where the concept of who is to serve whom is turned upside down.  As troublesome as they are, most government regulations are ostensibly intended for the benefit of society and the citizenry.  But there is a unique class of government regulation in which the citizenry is regulated/controlled/manipulated, not for its own good, but for the good of the government.

One example is the proliferation of testing in public school systems, not to monitor the advancement of individual students, but to create, record and utilize ‘big-data’ in the service of the school systems and the governments that run them.  It short, millions of students spend millions of hours doing work, not for their own benefit, but to create data for the government to use.

Even more recently, as this article explains in more detail, the “Commission On Evidence-Based Policymaking” was created by a bi-partisan Congress to analyze how to use data collected by governmental agencies including educational and workforce databases in order to determine how well government programs are working.  It’s a classic “tale wags dog” story.  Government overreach results in innumerable programs and agencies doing the unlimited work of government.  In order to measure, evaluate and improve these myriad functions of government, the Commission wants ‘big data’ on citizens.  A current ban prevents gathering such data but the Commission would like to see the ban lifted.  It’s justification is an eerie example of how, under the guise of improving government, the citizenry can be transformed from the ‘served’ to the ‘servers’.  “(B)ans on data collection and use create a serious impediment to evidence-based policymaking, and could make it difficult or impossible to hold government activity accountable.”

Get it?  Our behemoth government says it needs your personal information so it can monitor itself and make itself better.  So questions arise.  Are there any impositions upon the citizenry which are not permissible in the interest of monitoring or improving government?  If so, what are they?  Are there limits upon which the people will insist?  Or should privacy concerns always come second to whatever the government decides will make itself more efficient?  More broadly, government is already largely unmanageable, corrupt and incompetent.  Why would anyone think it is a good idea to turn over all our personal information to its great computers to be sliced, diced, examined and manipulated to God only knows what ultimate purposes?  Who serves whom?

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Distracting From The National Debt

The accumulated U.S. debt recently breached the $20 trillion mark.  Those who have remained concerned over the debt have viewed that coming milestone with alarm over the past many months.  Now that it has been reached, there’s nary a mention of it from the national media.

Once upon a time, the national media recognized the dangers involved in the U.S. accumulating too much debt.  I can recall major magazine articles and network nightly news broadcasts addressing the growing debt and deficits as early as the 1970’s.  At the end of the 70’s, the U.S. accumulated debt had not yet surpassed $900 billion.  We crossed the $1 trillion threshold in late 1981.  It took about 14 years to get to $5 trillion in the mid-90’s.  After another 13 years we reached $10 trillion in 2008.  It only took another 4 years or so to reach $15 trillion in early 2012.  Now here we are, a mere 5 years later sitting at $20 trillion.

As a percentage of our gross national product (GDP), the accumulated debt maintained in the 30% to 40% range through the 1970’s and to about 1985.  Since then, it hasn’t gone straight up, but the trend has been unmistakable.  It crossed the 100% mark in late 2012.  Since then it has ranged between 99% and 106%.

The national media has largely lost interest in the accumulated debt over the course of at least the past decade or so.  It’s bad enough that it is failing to fulfill its roll in alerting the public to such an important public problem but there are many examples of the media actively working to dissuade the populace from any immediate concern over the debt.  Many acknowledge that excessive debt can ultimately be a problem but argue or imply that there is a lengthy road ahead, down which the debt ‘can’ may be kicked for years or even decades before it becomes necessary to address in a serious fashion.  This article suggest we have up to three decades before there will be a significant problem.  This column in the NY Times suggests that the debt should be even larger than it is.  Forbes ran this column in 2012 in which the author plays word games by arguing that there can be no ‘debt crisis’ in the U.S. because we can always print as many dollars as we need to pay our bills.  He didn’t bother explaining what we should do about the ‘crashing dollar’ crisis and the economic catastrophe that will ensue if the ‘powers that be’ ever resort to overtly monetizing the debt in the manner he suggests.

This column, published just today, applauds the notion of a permanent removal of the debt ceiling because it would “wrench the job of raising the debt ceiling from the hands of Congress”.  Why would that be a good thing? Because “(Raising the debt limit) should be a lawmaker’s duty, not a concession.  Letting the United States go into default for any reason would destabilize the global economy, with disastrous results…”

A better example of a non sequitur can’t be found.  The inference (that the U.S. will default on its obligations) does not flow from the premises (that Congress might choose not to raise the debt ceiling).  This fallacy has been so widely used and oft repeated by politicians and the media it is unfortunately widely accepted.  But in fact there is nothing about refraining from increasing the debt limit which necessitates a default on any government obligation.  What it would necessitate is that the government make choices – that it decide how to spend its (now) limited funds.  It could choose to default on obligations.  But it could also choose to raise taxes or cut spending in order to come into balance.  In no sense is a default inevitable or necessary in the event the government stops borrowing.

The broader public’s lack of interest or understanding regarding the debt is a problem which must be overcome if the debt is ever to be addressed.  It empowers do-nothing politicians to continue borrowing as a tool to enhance their power and status and it discourages those politicians who might otherwise be willing to pick up the banner of fiscal responsibility and lead us out of the madness that will cripple future generations – generations who will rightfully look with disdain upon those who left them such a painful legacy.  The media has an amplified voice capable of influencing society’s perspective and understanding with respect to the debt crisis.  It should be using its megaphone as a force for good, inducing good citizenship and stewardship of our national fisc.  Instead it is too often disinterested or worse, complicit in justifying our generational theft of our children’s future.

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Repealing The Poop Eating Law

A farcical allegory of a farce: the repeal of Obamacare.

March 2010:

Obama: We’ve passed a new poop eating law. From now on, you will eat poop every day. Now, eat the poop.

2016:

Pre-election Trump: On Day 1, I will repeal and replace the poop eating law. You will never eat poop again. Shame and curses on those who have made you eat the poop.

Electorate: What do you mean by “replace”? What are you going to replace it with?

Pre-election Trump: Something you will absolutely LOVE. It will be wonderful. But it won’t involve eating the poop. Elect me and you’ll never eat the poop again! I will see to the repeal of the poop eating law!

March 6, 2017:

Post-election GOP leadership: We‘ve crafted modifications to the poop eating law.  We need to pass it for the benefit of the people.  Otherwise, the people will have to keep eating a lot of poop. The people are now accustomed to eating the poop…a lot of the poop. It’ll be nice for them to eat less poop. This bill is a vast improvement. 

Liberty/Constitution minded citizens:  What about repeal?  You were going to repeal the poop eating bill.

President Trump: This is a great bill. It’s wonderful. From now on you’ll eat less poop. And my agencies will be able to relieve you from eating some poop too.  And I promise…one day, you’ll all be able stop eating the poop FOREVER!

March 24, 2017:

Trump: We don’t have the votes to pass the modifications to the poop eating law.  ON TO TAX CUTS!

Liberty/Constitution minded citizens:  GREAT!  How are you going to cut spending so that the country doesn’t go trillions more into debt?

Trump and GOP leadership: 

(TO BE CONTINUED)

 

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Gorsuch, Filibusters and Politics

Last night President Trump announced his nomination of Neil Gorsuch to the Supreme Court.  Even before the selection, the media outlets were abuzz over the potential of a Democrat filibuster in the Senate.  Upset at the fact that President Obama’s nominee Merrick Garland was denied a hearing by the GOP controlled Senate, Democrat Senator Jeff Merkley stated prior to the nomination that he would filibuster any nominee.  Once the Gorsuch nomination was made known, the focus turned to the question of whether other Democrat Senators who were not committed to filibuster regardless of the nominee, might be persuaded to filibuster Gorsuch based on his record.  No doubt, there will much more on that question in the days to come.

Democrats might want to proceed with caution when considering whether to filibuster Judge Gorsuch.  Having used the ‘nuclear option’ to eliminate most filibusters of nominees when they were in control of the Senate in 2013, they opened the door to a ‘tit for tat’ response by the GOP controlled Senate with respect to Supreme Court nominees.  Some would argue that the country isn’t well served in the long term by eliminating the 60 vote supermajority required to defeat the filibuster when it comes to Supreme Court appointees.  But the underlying reasoning which supports that perspective was just as strong when the Democrats eliminated the supermajority requirement with respect to lower court appointees.  The McConnell led GOP Senate may be loath to extend the mistake made by Harry Reid and the Democrats, but the current Democrats should be leery at the prospect.  Once triggered, all future Supreme Court nominees will be subjected to Senate approval upon the vote of a bare majority, effectively neutering the minority party from blocking any nominee, no matter how objectionable.

When it comes to Judge Gorsuch, there’s little for the Democrats to find objectionable.  No less than President Obama’s solicitor general has penned an article entitled “Why Liberals Should Back Neil Gorsuch” wherein he extols the virtues of Judge Gorsuch writing that “if the Senate is to confirm anyone, Judge Gorsuch…should be at the top of the list” and adding that “he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.”  Though both parties should be concerned at the prospect of having no effective control over rogue nominations in the future, the Democrats concern in that regard should be more urgent because the GOP holds the Presidency now.  When faced with the prospect of a second Trump nomination, they should be particularly wary of inducing the GOP to exercise the nuclear option thus depriving the Democrats of any leverage whatsoever should the opportunity for a second Trump nomination arise.  So long as the Senate is still Republican controlled, President Trump would not have to consider the Democrat response to his next nomination.  He’d need only be confident that his nominee would garner at least 51 Republican votes to confirm.

Finally, the Democrats should consider the ramifications if McConnell and the Republicans don’t exercise the nuclear option as well.  McConnell may conclude that it isn’t necessary to stain the GOP with any responsibility for permanently eliminating the filibuster in the future.  He may calculate that a Democrat filibuster which effectively kills the Gorsuch nomination is likely to backfire.  President Trump is popular.  He has made a very reasonable choice for the open seat on the Supreme Court. He will be in a position of political strength, not weakness, if the Democrats kill the nomination.  President Trump could make life for Senate Democrats particularly difficult at that point.  He could nominate any number of legitimate jurists the Democrats would like less than Judge Gorsuch.  For example William Pryor is an excellent judge and was on Trump’s short list of potential appointees but it’s been widely acknowledged that the Democrats would find him less palatable that Judge Gorsuch.  Not on his short list was, but eminently qualified, is Janice Rogers Brown, an African-American female jurist with a strong libertarian bent and a tendency toward outspoken criticism of the Supreme Court’s past abdications of its responsibility to safeguard the Constitution, particularly with respect to economic liberties.  Do the Democrats really want to spend the next 12 to 18 months defeating the appointments of a popular president?  Or will they smartly consider the damage such obstructionism might do to their chances in the 2018 mid-term elections?

President Trump’s nomination of Judge Gorsuch would seem to leave the Democrat minority in the Senate no good option other than to capitulate, after some lengthy posturing to placate its leftist grass roots, of course.  A serious filibuster is likely to initiate one or the other of two scenarios, neither of which look to end well for the Democrat Party.

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Why Do I Like Trump?

As an advocate of individual liberty and constitutionalism, I find a lot to dislike, or at least distrust, about Donald Trump’s coming presidency.  Though he and his closest advisors pay lip service to a smaller Federal government, there aren’t many indications that he’ll really do much in that regard.  Obamacare is an atrocity and should be repealed outright, but Trump’s repeated insistence on replacing it at the Federal level doesn’t instill confidence in his understanding of the constitutional limits on the Federal government’s power.  Further, using the bully pulpit to coerce businesses to do that which they don’t deem to be in their best economic interest isn’t the hallmark of one who genuinely believes in economic liberty or the benefits free markets render to society at large.

I hear the oft repeated mantra’s…‘he’ll be far better than Hillary’ and, ‘it’s all about the Supreme Court’.  I get it.  But I’ve long recognized that the U.S. has, since at least the 1930’s, always taken at least two steps toward statism for every opposite step towards a return to constitutionally limited government.  If one were to construct a graph with the horizontal axis representing time from 1936 to the present and the vertical axis representing the relative degree of statism, the graph would reflect a clear trend to greater degrees of statism.  Sure, you would see momentary diversions representing brief respites, but they’d all be followed by a return to the trend line which has consistently led to bigger and more intrusive government and less individual liberty.  Nothing I’ve heard from Donald Trump suggests to me that he’s going to do anything to change that trend line.  In order to change it, the American people must be persuaded to the societal benefits of liberty and dissuaded from the false promises of supposedly well intended coercion founded only on the immoral premise of democracy.  Donald Trump is not the President who will lead that effort; not because he isn’t capable, but because he doesn’t believe in it.  I’m happy that Hillary Clinton wasn’t elected.  And I’m glad at the prospect that Trump’s judicial appointments will likely be better by comparison.  But these will be among the many respites; comforting, but fleeting. Ultimately, a return to the trend line awaits.

So why have I enjoyed the Trump pre-presidency so much?  This question has perplexed me.  The very substantial degree to which I’ve enjoyed Donald Trump’s post-election period as president elect isn’t warranted by my assessment of his ultimate effect on our ever rising trajectory into greater degrees of statism.  So what’s going on?  What is it that I like about Trump?

I’ve come up with two primary factors.  The first is obviously important and a credit to Trump – he is a constant and vocal opponent of global government and we need leadership on that point right as never before.  Though nationalism has understandably earned a bad connotation in many contexts, it has taken on a crucial legitimacy as a response to governmental globalism.  When ‘nationalism’ means respecting the Constitution and American statutory and common law as the only legitimate law of the country and rejecting efforts of globalist to allow treaties or United Nations pronouncements to effectuate even the subtlest of influences on our unalienable rights, nationalism is a very good thing indeed.  Preserving the United States as a nation state, sovereign and unyielding in the face of any global efforts to infiltrate our substantive law is critical.

Though important, Trump’s anti-global government stance isn’t enough to explain the pleasure I’ve had in witnessing his pre-presidency.  It’s the second factor I’ve identified which appeals to my base human impulses and thus better explains my enthusiasm. Better yet, on reflection, it may actually provide some hope for a future different than I would have supposed just a few months ago.

In short, I like how he’s sticking it to the worst elements of the left.  Those watching the media and the public reaction to it over the past decade may reasonably have concluded that too many of the American people have stopped thinking for themselves.  The left leaning national media seemed to have an almost magical ability to define the issues worthy of public attention and then set the narrative as to those issues.  Similarly, leftist academic speech police and self-appointed enforcers of political correctness seemed to have acquired the ability to thwart the free exchange of ideas whenever their personal sensibilities were offended or the legitimacy of their perspectives were threatened.

Trump has demonstrated that the national media doesn’t necessarily control the narrative and that perhaps the ‘thought police’ are all bark and no bite.  Just maybe there aren’t quite so many stupefied citizens who blindly follow the prompts of the national media and leftist elite.  Maybe good people just needed a champion to give them a voice.   I understand the concerns over his sometimes heavy handedness but I have to wonder whether he would be so successful in foiling the leftist machinery without the entertainment factor.  Let’s face it, people like it when bad actors get called out and exposed.  Trump’s brashness may be a necessary ingredient in his recipe for success.

The important question for the future is this: has Trump set a workable example for how others might successfully neuter the national media and leftist elites?  If we ever manage to elect a President who will work to persuade people to the societal benefits of liberty and constitutionalism, can he or she learn from Trump’s example in order to deny the left the power to control messaging and impose sanctions on those with whom they disagree?  If so, that may ultimately be the prevailing legacy of his presidency, and a worthy legacy that would be.  If the Trump experience permanently exposes the fallacy of the leftist elite’s ‘authority’, if he enables the American public and those in positions of power and influence to not only see, but comfortably declare, that the emperor’s new clothes are imaginary and the leftist elites are naked of the power which they have presumed for themselves and in which too many have acquiesced for too long, then he will have provided at least one great and lasting service to his country.

In the meantime, I hope to continue to enjoy watching the leftist elites flounder as they employ their old playbook over and over again to no avail while I wait with fingers crossed to see what Trump’s presidency actually brings.

 

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In Defense Of The 2nd Amendment

In response to the Orlando terrorist attack, David S. Cohen penned this article which was published on Rolling Stone’s webpage.  It’s title, “Why It’s Time to Repeal the Second Amendment” is refreshing for its honesty.  Statists who wish to further empower government at the expense of individual liberty usually do so in small doses, with suggestions of ‘reasonable’ impositions on our liberties in order to give the government ‘just a little’ more authority over us in order to fix some perceived problem.  The goal is usually to induce us to take that first step out onto a slippery slope where we will then be expected to acquiesce to further incremental losses of our liberties.  Cohen’s call for the complete repeal of the 2nd Amendment is refreshing because it is honest.  No slippery slope here – he wants you to agree to an outright repeal of your right to keep and bear arms.

Unfortunately, the honesty is confined entirely to the title.  The body of this short article is filled with unsupported leftist propaganda.  Included are inaccurate criticisms of the Founders (they “enshrined slavery into the Constitution in multiple ways”); straw-man arguments against the perpetual perfection of the Constitution (no one seriously argues that the Constitution is perpetually – or temporarily – perfect); a leftist checklist for how the Constitution might be improved (an equal rights amendment, Senate representation based on population); and misdirecting arguments about gun control which avoid discussing the reason the 2nd Amendment was proposed and ratified (firearms are capable of more damage than the founders could have imagined; the risks of the right to keep and bear arms now outweigh the benefits; though Cohen offers no analysis or comment on what the benefits are).

Though Cohen has posited several assailable propositions in just a few sentences, one who wishes to clearly and demonstrably refute them is forced to do so in substantial detail.  The refutation necessarily takes more time, and words, than does the statement of the simple proposition.  For that reason, I’ll limit my criticism to only one aspect of Cohen’s article…the conflation of ‘liberty’ and the ‘right’ to be safe and secure.

Statism cannot prevail for long where liberty is understood and appreciated.  Statists know this.  For that reason, they’ve gone to great effort over the years to muddle the definition of the word ‘liberty’ in order to introduce confusion. We see this tactic utilized in Cohen’s article.  He wrote:

“Gun-rights advocates like to make this all about liberty, insisting that their freedom to bear arms is of utmost importance and that restricting their freedom would be a violation of basic rights.  But liberty is not a one way street. … It includes the liberty to…go anywhere and feel that you are free to do to so without having to weigh the risk of being gunned down by someone wielding a weapon that can easily kill you and countless others.  The liberty of some to own guns cannot take precedence over the liberty of everyone to live their lives free from the risk of being easily murdered.”

Cohen misunderstands and therefore misrepresents liberty.  ‘Liberty’ connotes the relationship between government and citizens.  It involves the question of what impositions the sovereign can place on the freedom of citizens.  It has no place in any discussion regarding citizens’ actions among each other. The usage of the word ‘right’ in the context of interactions both between and among individuals and between individuals and government has possibly helped to further this confusion.  A good case in point is the 2nd Amendment itself which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  Thus, the right to keep and bear arms, like the right not to incriminate oneself, and the right to free speech, is a liberty because the government is restrained from limiting or regulating our autonomy in that regard.  In contrast, the right not to be murdered by a fellow citizen is not a liberty because it does not involve the misplaced force of government.

When Cohen attempts to place the ‘liberty’ to keep and bear arms in the same context as the ‘right’ not to be murdered, he implies a false equivalency between liberties (from government intrusion) and rights (vis-a-vis fellow citizens).  These concepts are not one in the same.  Statists hope that the casual or uncritical reader will accept this false equivalency and perform their own balancing test between a real liberty (the government can’t infringe on gun ownership) and a right mislabeled as a ‘liberty’ (not to be murdered by a fellow citizen).  Faced with that deceptive choice, some would quickly determine that that the ‘liberty’ not to be murdered is more important that the liberty of keeping and bearing arms.  Thus, statists hope that the failure to understand and appreciate the difference between liberty from governmental intrusion and a right not to be murdered by a fellow citizen will lead one to embrace the notion of voluntarily yielding liberty in exchange for a mere promise of better security and safety.  While some would suggest that such a trade-off is advisable, one should come to that conclusion only after coming to a full understanding of what the tradeoff is – real liberty for a mere promise of security – rather than what Cohen portrays it to be – yielding one liberty to enhance or protect another.

Once properly understood, the proposition that the 2nd Amendment should be repealed gives rise to some obvious questions which should be carefully considered before yielding a liberty which has been held inviolate since the founding of the country.

  • How will the government meet its promise of providing better security?
  • What basis does the government have to suggest that we will be safer without the right to keep and bear arms?
  • If we yield our right to keep and bear arms, we’ll be less secure in our own homes.  How will the government replace the personal security we can now provide for ourselves and our families?
  • Once we amend the Constitution to eliminate our right to keep and bear arms, it will be very difficult if not impossible to turn back.  What if it doesn’t work and we end up less secure as a result of the fact that we may be prohibited from owning guns to protect ourselves?

Finally, we must keep in mind the real reason the 2nd Amendment was ratified in the first place – not for hunting, target shooting or even home defense, but to safeguard against tyranny.  Just a few short decades ago authoritarian tyranny was rampant in the world.  Today it still exists, though in smaller, often ignored pockets.  But throughout all of human history, authoritarian tyranny has prevailed.

Over the course of the decades since World War II, democratic governments across the world have acted to restrict the liberty of their citizens to keep and bear arms.  As such, America stands as the last major western democratic nation where the people have retained that liberty.  We once learned and should now remember the horrible consequences that can befall an otherwise free people when their liberty to keep and bear arms is breached.  We should not be so cavalier as to yield our liberties when times are such that they may not seem to be crucial.  The liberty to keep and bear arms is crucial and will always be crucial because times change. History is not static.  We must maintain that particular liberty in order to have any hope of maintaining all our other liberties should the day come when it is necessary to defend them.  If we yield the liberty to keep and bear arms, all others will be placed in a state of perpetual jeopardy and we will have willingly exposed ourselves to all that history should by now have taught us to guard against.

 

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Beyond The Right To Carry Firearms

Judging from social media comments, there is a lot of misunderstanding concerning the recent ruling by the 9th Circuit Court of Appeals in Peruta v. County of San Diego.  The purpose of this article is to clear up the some of the confusion and to call attention to a potential scenario whereby the question of the 2nd Amendment ‘right to carry’ might ultimately be used by the left in an effort to damage the Constitution beyond the 2nd Amendment.

In Peruta, the 9th Circuit ruled that there is no 2nd Amendment right to carry a firearm in public.  The states comprising the 9th circuit are: Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington.  Because Peruta is a decision by the 9th Circuit, it affects only those states.  Importantly, it does not make carrying a firearm illegal in those states.  It doesn’t nullify or void or de-constitutionalize any 9th Circuit member states’ laws permitting citizens to carry.  It merely states that there is no individual 2nd Amendment right to carry a firearm.  Thus, states may choose to disallow carrying a firearm, but they are not required to do so.  Any state in the 9th Circuit which chooses to permit carrying may do so.  That has not changed.  And the 9th Circuit decision has no direct legal effect at all in any state outside of the 9th Circuit.

Of course, that is not so say that the Peruta decision is no cause for concern outside of the 9th Circuit.  If a citizen’s rights are infringed, we should all be concerned.  Similarly, anytime an American court attempts to justify perceived impositions upon constitutional rights, we rightfully worry about the rule of law and the continued diminishment of our Constitution.  Finally and most importantly, the practical ramifications of the 9th Circuit decision might be more profound and much more imposing than would initially appear.

In the event the Peruta decision is accepted on appeal by the Supreme Court, or a similar case from another Circuit results in such an appeal being accepted by the Supreme Court, then the Supreme Court will have the opportunity to decide for the entire nation what, if any constitutional right individuals have to carry firearms.  Were the Supreme Court to issue a decision in accord with the holding in Peruta, there would be virtually no individual constitutional right to carry a firearm, whether concealed or open carry.  Any state could legislate stringent restrictions or virtual bans.  But again, they would not be obliged to do so.  A rights respecting state would still have the ability to enable individuals to carry firearms despite the ruling that they have no 2nd Amendment right to do so.  There is however a larger concern in the event all three branches of government align.

‘The Supremacy Clause’ of the Constitution is contained within Article 6 which provides in part that the “Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”  The Supremacy Clause made perfect sense when drafted because there was an expectation that the powers of the Federal government, limited as they were by the Constitution itself, would remain limited.  The founders expected that any significant attempt by the Federal government to illegally expand its power would by rebuffed by the states and by the people.

The New Deal era ushered in a new age in Federal Government power.  As I wrote more extensively here, a Supreme Court which had been a stalwart protector of the Constitution against overreaching New Deal legislation, became compliant to Congress and FDR almost overnight.  Where it had typically used judicial review of federal legislation to limit the Federal Government to its constitutional sphere, it began reinterpreting the now ‘living’ Constitution so as to enable a massive expansion of Federal Government power.  One of its favorite and well-worn avenues for doing so was the misinterpretation of ‘The Commerce Clause’ of the Constitution.

Article 1, Section 8 of the Constitution specifies Congress’s powers.  Included is the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  The Commerce Clause was intended to enable Congress to regulate trade among the states so that it could be normalized and in order to avoid trade conflicts between and among the states.  For decades that’s how it was utilized and interpreted.  Only after the advent of the ‘living’ Constitution, did the Federal Government use the Commerce Clause to justify the widespread intrusion upon myriad private economic and personal relationships between and among individuals – and the Supreme Court rubberstamped virtually every expansion for decades.

Finally, in 1995 the Supreme Court decided the case of Lopez v. United States.  In Lopez, the Court considered the constitutionality of the Gun-Free School Zones Act of 1990.  The Act made it a crime to knowingly possess a firearm at a place that the person knows, or has reasonable cause to believe is a “school zone”.  The statute in no way purported to regulate a commercial activity, nor did it require any link between the possession of the fire arm or the fire arm itself, to interstate commerce.  The sole basis asserted for constitutional authority was that possession of a firearm in a school zone ‘substantially affects’ interstate commerce.

In its effort to defend the statute, the government argued that a firearm may result in violent crime and that violent crime in and around a school could be expected to affect the national economy in two ways.  First, the costs are substantial and those costs are ultimately spread throughout the entire population.  Second, violent crime reduces the desire or willingness of individuals to travel to areas deemed unsafe.  Also, guns in and around schools could damage the learning environment ultimately resulting in a less productive economy.  Based on this reasoning, the government contended that Congress had a rational basis to conclude that the statute would substantially affect interstate commerce.

The opinion was authored by Justice Rehnquist.  Justices Thomas, O’Connor, Scalia and Kennedy joined in majority for the decision.  The opinion  identifies several prior cases where the Court found Federal legislation to be authorized under the Commerce Clause and argues that each involved an economic activity that substantially affected commerce.  Specific examples provided are Hodel (“intrastate coal mining”), Perez, (“extortionate credit transactions”), Katzenbach (“restaurants utilizing substantial interstate supplies”), Heart of Atlanta (“inns and hotels catering to interstate guests”) and the infamous Wickard v. Filburn (“consumption of homegrown wheat”).  The distinguishing factor in the Court’s decision to disallow the Gun-Free School Zones Act was the notion that the activity regulated was not commercial or economic activity.  With Lopez, the Court finally drew a line in the sand beyond which it would not permit to Congress to use the misinterpreted Commerce Clause to legitimize an expansion of Federal power.  If activity isn’t commercial or economic, the Commerce Clause won’t be read to authorize Congress to regulate it.

To be sure, the statists who desire an ever expanding Federal Government would like nothing more than to overturn Lopez and return the misinterpreted Commerce Clause to its former status as an infallible and infinite source of federal power – which brings us back to Peruta and its potential aftermath.  One can foresee a two stage effort statists might employ to simultaneously achieve two goals; erode the 2nd Amendment and overturn Lopez.

The first stage would employ an appeal to the Supreme Court in an effort to nationalize the Peruta decision or some variation of it.  The end goal would be a Supreme Court decision declaring that there is no 2nd Amendment right to carry a firearm, whether concealed or open carry.  If that effort succeeds, the second stage would employ Federal legislation, purportedly authorized by the Commerce Clause, to make concealed carry illegal nationally.  Because of the Supremacy Clause, any such legislation would override any state legislation recognizing the legality of concealed carry.

Of course, the Federal law banning carrying nationwide would necessarily result in an appeal to the Supreme Court based on Lopez.  It’s one thing for the Supreme Court to have ruled in the first stage that there is no 2nd Amendment right to carry.  It’s another thing altogether for Congress to assert the authority at the Federal level to ban carrying firearms.  Lopez established that there is no such authority under the Commerce Clause.  Thus, the left would seek to overturn Lopez.  If successful, the statist effort could result in a Supreme Court decision that both recognizes the legitimacy of Federal legislation outlawing the carrying of firearms and overturns Lopez thus reopening the font of illegitimate federal power that was the misinterpreted Commerce Clause.

I’m not predicting this scenario will come to pass or even that statist forces will make the effort.  But if the day comes when statists judge that the Supreme Court would seriously consider nationalizing the Peruta decision and overruling Lopez and that Congress would pass national concealed carry legislation, it would be extremely naïve to believe that they wouldn’t make the effort.  The left is nothing if not patient and should be expected to make this effort when the time is right even if not for many years.  Those who would defend the Constitution, federalism and individual liberty should be mindful of such a strategy and vigilant if circumstances develop which tend to indicate such an effort is underway.

 

 

 

 

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The Good In West Virginia’s Budget Dispute

I live in West Virginia where state government is embroiled in a budget battle.  Tax revenues have dropped substantially.  Through the regular legislative session and 12 days of a special session, the legislature could not agree on a combination of spending cuts, tax increases and/or the use of ‘rainy day’ account funds capable of gaining a majority of both houses.  Finally, on Friday, a budget passed both houses.  It’s now on the governor’s desk.  Most anticipate a veto.

Partisan positioning based on ideology has been prevalent.  For the first time in my memory, the legislature is reflective of a two-party system and the ideological divisions that come with that distinction are still somewhat of a novelty here.  In the past, whenever revenues dropped off, the only responses likely to be considered involved revenue enhancement, i.e., tax increases.  Now, a Republican disdain for tax increases is running head long into the unfortunate and nearly universal political desire to not cut spending.  That struggle is largely new to West Virginia and the legislature has floundered in the effort to find majority support for any combination of the available approaches to deal with the reality of falling revenue.

Partisan squabbling based on achieving political advantage in the November general election has been rampant; who is ‘at fault’ for the delay in achieving a budget…who should ‘have seen this coming’ and planned for it better…who doesn’t care about the state employees who may see their pay cut or might be subjected to a furlough…who doesn’t care about education…who wants to single out smokers for taxation, etc…

Social media has been very active with budget discussions and debates among the politically inclined and those who may not typically be policitally interested but are compelled to the debate in an effort to protect their personal ox from being gored.  Local newspapers and websites have been laser focused on the daily machinations, reporting every suggested resolution and each inevitable opposing response.

Though I have no data, I’m certain delegates and senators are hearing from their constituents in a loud and clear fashion exactly how they feel about various aspects of the budget dispute.  And no doubt, those delegates and senators are feeling the electoral pressure that flows naturally from an interested and attentive citizenry.

And it’s all been a good thing.  That’s not to say that each suggested resolution, each response in opposition, each transparent effort at political posturing and every hateful private debate made public by virtue of the internet has been a good.  But what has been a very, very good thing is the process – the forest, if not each of the trees.

I’m happy for the opportunity to finally live in a state where political solutions are not forgone conclusions and therefore not subjected to public debate.  I’m happy to finally live in a state where the push/pull between balancing revenue and spending is a real contest for public opinion.  But most of all, I’m happy for the reminder which witnessing this process provides as to what self-government can and should be.

The United States was founded in part on federalism.  The federal government and the states were to share sovereignty.  The federal government was to have very limited and specified powers.  James Madison wrote in Federalist No. 45 that “The powers delegated by the Constitution to the Federal Government, are few and defined.  Those which are to remain in the State Governments are numerous and indefinite.” 

 There were a number of reasons for this approach.  Practically, the states could not be expected to ratify a Constitution that didn’t preserve for them broad powers.  Individuals generally identified the state in which they resided as where their allegiance lay.  Many were skeptical at the notion of granting the central government any additional authority beyond those anemic powers specified in the Articles Of Confederation.  Simply, the Constitution could not have been ratified were it not for the fact that the states retained substantial sovereignty.

Fundamentally, the framers recognized that there were only certain functions the central government could perform effectively.  They recognized that effective self-government implies local government and that representative government requires the people to have access to their representatives with respect to the issues that matter most in their lives.  The more local the government, the more likely the public to remain engaged, the more likely self-government would truly be ‘self-government’.  As Madison wrote, “The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

Since the 1930’s the Federal Government has acquisitioned the constitutional authority of the states through many mechanisms.  The Supreme Court has regularly and intentionally misinterpreted the Constitution in order to enable the expansion of federal power.  More directly, the Federal Government has ‘purchased’ state sovereignty by returning taxed money to the states, but only with strings attached – strings which force the states to act or refrain from acting as directed by the Federal Government.  The result is an ever more powerful Federal Government acting as puppeteer, manipulating the states to yield their constitutional sovereignty in exchange for a return of moneys previously funneled from the people to Washington via the taxing authority.

That centralization of power in Washington is rendering Madison’s vision of the states legislating in all matters most important to the people a broken promise.  And as power is moved from state capitals to Washington, it’s only natural that the people become disengaged politically.  As I previously wrote here, “Centralization of everything from healthcare to public education to speed limits on local highways slowly engenders a defeatist attitude in the mind of the civically interested individual.  Her political voice, once easily heard on a local or even state level, has become a mere whisper, taking a back seat to the special interests groups and cronies who have the financial wherewithal to amplify their voices loud enough to be heard in Washington.  The ever growing and seemingly all powerful regulatory and administrative state is even worse, often leaving individuals with feelings of helplessness and inevitability.”

The West Virginia budget debate, though difficult, fraught with political infighting and subject to varying opposing perspectives, is representative government in America as it was intended to be.  Concerned citizens can be heard and can participate.  Politicians hear the voices of their constituents and expect to be held to account.  Regardless of the outcome of the debate, West Virginians should take satisfaction in the fact that their voices and their votes matter to a degree which cannot be replicated at the federal level where individual citizens are dissuaded by design from becoming involved and, when they do decide to speak, find it extraordinarily difficult to be heard.  Citizens of every state should keep this in mind when confronted with Washington’s next, inevitable effort to usurp constitutional sovereignty from the state capitals to Washington D.C.

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Constitutional Concerns Over Trump

Donald Trump’s brash, non-political celebrity and outspoken approach have introduced, for better or worse depending on your perspective, a new dynamic in presidential politics.  Prospective voters can choose from any number of hot button political topics and love or despise him for his position, or perhaps just as importantly, for the manner in which he articulates his positions.  While I have personally enjoyed the metaphorical thumb he intentionally and repeatedly sticks into the eye of those who insist on political correctness, I have many concerns with regard to how he might govern.  Chief among them is a concern that he doesn’t respect or understand the Constitution or its structural mechanisms which limit and disperse governmental power.

Trump made two public comments this week which perfectly illustrate the basis for my concern.  In a CNN Town Hall this past Tuesday night, Trump was asked a question from the audience regarding what he considers to be the top three functions of the federal government.  In response, he listed national security, healthcare and education, in that order.  The following day Chris Matthews asked him how he would go about banning abortions.  Trump didn’t have an answer, but the discussion led to a follow-up question regarding whether women who have an abortion should be punished, presumably through some criminal sanction.  Trump asserted that yes, “there has to be some form of punishment”.

While I fully expect a statist Democrat candidate or an establishment Republican candidate to assert that the regulation of healthcare and education are properly within the powers of the federal government, I continue to hold out hope that the Republican Party might identify and nominate a candidate who not only understands, but appreciates that the federal government has only limited and specifically enumerated constitutional powers and that they decidedly do not include the regulation of health care or education.  Though Trump ultimately stated that responsibility for education policy should be returned to the states, one gets the distinct impression that this opinion is based on something other than an understanding that the federal government has no legal authority in the education arena.  That impression is bolstered by the fact that he continues to advocate for a substantial federal role in healthcare without any apparent regard for the question of constitutional authority.

Similarly, the abortion question is simply not a policy concern for any president who is a constitutionalist.  Why?  Because the regulation of abortion is exclusively within the constitutional authority of the states.  Were Roe v. Wade overruled tomorrow, the question of abortion would return to individual state legislatures.  If a state were to outlaw abortions, it would also determine whether women and/or doctors receiving or performing illegal abortions would be subject to criminal sanctions and, if so, what those sanctions would be.  Simply, there is no constitutional role for a president in determining the legality of abortion or the penalty for violating any state law outlawing abortion.  In the media aftermath of the abortion comment, Trump has clarified his initial comments to suggest that only doctors who perform illegal abortions should be punished and not the women who receive them.  The clarification only reconfirms his misunderstanding – or disregard – of the Constitution’s limits on federal authority.

If we are ever to return the country to a condition of deep and widespread individual liberty, we must pursue constitutionalism.  The separation of powers among the federal branches and between the federal government and the states left individuals in a far better position to protect and defend liberty than the current paradigm where so much unconstitutional power is concentrated in Washington, out of reach – often even out of sight – of the populace.  The president is uniquely situated to lead the country toward constitutionalism while putting constitutionalism out front and center as a matter of public debate.  Those who cherish liberty should seek and embrace a presidential candidate who understands and appreciates the Constitution and the manner in which it distributes governing authority and should shun any who promise to wield unconstitutional power, regardless of how appealing the policies advocated by that candidate may appear.  Constitutionalism is the way to liberty in America.  Any other path holds only the empty promise of temporary policy victories while maintaining the status quo of unconstitutional power consolidated in Washington.  Any other path offers only diversion and a delay from the ultimate goal.

I’ll continue to keep an open mind with respect to Donald Trump.  I’ll wait for him to demonstrate an understanding of the Constitution and a commitment to constitutionalism.  So far, he has tended to demonstrate the opposite at most every opportunity.

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