Sunday, October 12, 2014

National Food Shortage Highlighted by First Lady

Apparently we are in a ketchup shortage, and Michelle Obama is doing her part to make sure there are enough packets to go around in schools that receive federal school lunch subsidies. To accomplish that worthy humanitarian goal, the federal school lunch program is being interpreted to bar students from taking more than one ketchup packet with their meals.  

This burden unfairly portrays Michelle as a snooping, intermeddling miserly food grump.  Read more hereTo assist Michelle, I am asking each of my readers to spread the word of this campaign and to help out.

First, please like this post on Facebook or favorite it on Twitter.  Then, please, for the sake of the children, and the Nation, share this important project on your social media sites..

Second, scour your car seats and kitchen drawers for those left-over ketchup packets that you have been unintentionally hoarding during this humanitarian crisis. Package them, address below shown, and mail them to Michelle Obama at the White House, where she has been tirelessly administering the Ketchup for Kids Program. I would also include a handwritten note of thanks. Perhaps something like this:

Dear Michelle,

Thank you for wanting to insure that every child receives one ketchup packet daily with their lunches. Until recently, I was not even aware that ketchup shortages would result in children being denied access to such basic food staples. To support your efforts, and to increase the supply of ketchup packets so that, hopefully, one day, children can satisfy that rare and gnawing hunger for a second packet, I am sending along unopened ketchup packets that, I am embarrassed to say, I have been unintentionally hoarding. I know you will make sure that this ketchup ends up in the hands of children.

God bless you in this important work,

[insert your name here]

Mailing address for Michelle Obama:
Ketchup for the Kids
C/O Michelle Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Tuesday, October 7, 2014

Barry, Barry, Who the Heck is Barry?

With our good friend, Lou Sharp, my wife and I spent more than a few Friday or Saturday evenings at Kate's Irish Pub in Springfield.  Those were nights when the music was live and "professional" (as opposed to open mike nights earlier in the week when the music was live and often just as good).

One staple performer, Dave Berry, would presage his transition from the family portion of his show to the bluer, adult portion with his rendition of "Alice, Who the Heck is Alice."  Some of you would recognize the song if I changed the word "Heck" to something that rhymed with "duck."

As I read the news, day after day, now some seven years into Obama's public campaigning for President and subsequent election to that office, I hear Dave Berry, leading the crowd over and over again, only in my head, an enraged crowd is yelling, Barry, Barry, Who the Fuck is Barry?

Well, let's see:

He's the President whose administrtion praised the Oklahoma mosque that sheltered and taught a black man whose moment of fame came in beheading a grandmorther whose apparent crime was not to express submission to Islam.

He's the President that leaves open the borders to those traveling from Ebola-plagued corners of Africa, resulting for the first time, in American history, in the presence of Ebola-infected patients in American communities and hospitals.

He's the President that can erect a second, interior fence to insure that he's protected from would-be invaders, but REFUSES to erect the authorized border fence to protect us from actually-are invaders.

He's the President with the erasable red crayon for drawing lines on the world stage, whose word is not a bond, not even a post-it note kind of bond that will stick unless it gets wet or a good wind comes along.

He's the President who figured out how to turn 3,000 American military casualties in Iraq into proof of a wasted venture by preferring immediate disentanglement to appease home supporters over stabilizing that Nation.

He's the President that allows Federal law enforcement agents to export guns to Mexico in a hare brained scheme allegedly to track their reimportation to the USA, but which resulted in those weapons being used to murder more than 100 people, including American federal law enforcement officials.

He's the President that sides with al-Qaeda affiliated terrorist groups ... in Libya, in Egypt, in Syria, and elsewhere.

He's the President whose rocket-running in Libya was covered up with the blood and death rattles of America's first openly gay US Ambassador and three other Americans.

He's the President whose administration called the murder of Americans aboard a stateside military base "workplace violence, not terrorism," despite the cries of Alluah Ahkbar by the murderer during his rampage.

He's the President that led the USA apology tour, bowing and scraping before tin-pot potentates and has been leftists around the world.

He's the President that promised you could keep your healthcare insurance and your doctor, then signed a law that took away your healthcare insurance and your doctor, then signed an executive order to protect some of you from immediately losing your healthcare insurance and your doctor to prevent an election annhilation of the Democratic Party in 2012 and against this year, but who will allow that healthcare law to have full effect and take away your healthcare insurance and your doctor after the November 2014 election.

He's the President without a record of accomplishments to which he could point when seeking office, having no record of private accomplishments in business, industry, science, research, education, philosophy, or any other field.

He's the President without a paper trail, setting aside one sophomoronic editorial from his college days, he is that wonderment of wonderment, the man without evidence of a college transcript, a law school transcript, an employment record.

He's the President who lied about his origins to get a scholarship for foreign students (after all, Obama is a native-born American, right? so how does he qualify for foreign student assistance?)

He is not a cipher, as in a zero.  Because, while a zero adds no positive value to anything to which it is added, Obama brings NEGATIVE value to everything he touches:  he is the hair in your soup, the odd smell of feces in your tap water, the dent on the hood of your new car, the flat tire on your way to work, the unsettling call in the middle of the night bearing terrible news, the drop in your stocks, the theft of your identity.

He is the autocrat de fe.  He is a veritable dictator whose targetting of political opponents and uncooperative military officers and private industry makes Richard Milhouse Nixon look like a playground piker.  No mere tosser of taunts, the Machiavellian Obama turns loose the dogs of the IRS and the DOJ on those who express opposition to his ideology and his policy.

He tends the American garden the way rabbits tend your garden, eating what is not his, trampling what he does not own, leaving ruin in his wake.

Under his liar's tenancy in the White House, the number of permanently despairing unemployed Americans has breached 92 millions -- including 55 million American women, the numbers of hungry Americans dependent of Supplemental Nutritional Assistance from the fedgov has past 45 million on its way to 50 million, and the number of uninsured Americans has grown, not declined, as the obamanation of Obamacare forces private employers to discontinue private health plans because what was a perfectly fine plan as far as employer and employee were concerned does not satisfy the standards set by a law that Obama had to sign into law to discover what was in the law.

Obama is the light at the end of the tunnel.  No.  Not daylight.  The train heading toward you and seventy miles an hour with a drunk in charge.

Now you understand why I have dreams of a nation rising to its feet and thundering its refrain, "Barry, Barry, who the fuck is Barry?"

Sadly for America, Barry is the President.  Barry is the man who should realize that Speaker John Boehner is "his best friend."  Of course, as Barry's friend, Boehner proves himself no FRIEND of America or its People.  The President of the United States is worse than a cancer.  A cancer will kill you.  But Barry will kill you, your family, your future, your hopes, dreams and aspirations as he works like mold, like termites, like disease, to destroy everything with which he has concourse.  All the while, Republicans in the US House of Representatives leave this disease, this whirling dervish of destruction, in power.  They have the power to stop the government until Barry submits.  They have the power to put the asterisk of impeachment next to Barry's name in the history books as a testament to THEIR rejection of his decidedly incompetent, decidedly evil, and decidedly destructive policies, yet, with Barry's best friend Boehner at the helm, THEY DO NOTHING.

I hope you're getting the rhythm of this song.   I want it pounding in your brain.  I hope that before too awful long, you'll join in and sing that refrain:

Barry, Barry, Who the Fuck is Barry.

Not in a drowsy drunken slur, but in the indignant, demanding and revolutionary tones of those who drove a wedge between the English Crown and our prized liberties.  The time is coming when what can be tolerated from that useless defecation in the White House will be surpassed.  In the absence of concise Congressional action to TERMINATE the Obama presidency, it may fall to the hands of good people, you, your families, your friends to POUND away at the tyranny until it falls to the floor.

Then, with derision, and slight remembrance, but soothed anger, we can go back to a more desultory refrain of

Barry, Barry, Who the Fuck was Barry?

Friday, September 26, 2014

Shall We, Under the Constitution, Govern Ourselves? Or, Shall We Be Ruled Under Tyranny?

 (This is Part II of a Blog evaluation of the recent federal appeals court decision holding that the tax imposed for failing to purchase health insurance did not violate the Origination Clause of the Constitution. You can read Part I, in which the decision is summarized, here.  Here, I raise old questions about the nature of our government and about the existence of a putative duty of citizens to respect decisions of a federal court that purport to interpret and apply one of the fundamental documents of the Nation, the United States Constitution.)

As previously explained, the DC Circuit has rejected a constitutional challenge to the tax imposed by the Patient Protection and Affordable Care Act.  That challenge asserted that the tax violated the Origination Clause of the Constitution because the legislation imposing it originated in the Senate, rather than the House of Representatives.  In my previous post, I concluded:  “For now, it would seem that the Origination Clause theory is in trouble.”

Perhaps it is in bad form to open a conversation with a litany of questions.  Nonetheless, we face the consequences of a lazy Congress, a tyrannical president, and an unhistorical court decision.  A few questions are, I think, a good way to frame our circumstances.

Should the Origination Clause challenge to the tax imposed for failing to purchase health insurance fail?

Should the decision of three appointed judges bind a Nation and its People to their determination of these intertwined issues?

Should the Origination Clause be understood to apply only to those bills about which the Congress entertained “raising revenue” as its animating purpose and intention? 

These questions, how we examine them, how we answer them, decide more than the constitutionality of the Act.  Rather, what we say about these questions, the principles we bring to bear on them, reveal much about how we, as a People, have progressed under the Constitution, how we have learned the lessons of the setting up of, and governance of, our Nation.

Are we bound to bow to the conclusions reached by three judges in this matter? Do a federal court’s neat machinations around the Origination Clause literally command the heartfelt obedience and respect of us all?  To that decision, as free people under this Constitution, do we owe some kind of fealty?

The answer to each of these questions might be “yes,” but I think the proper answer to each is “no.”

By saying “no,” I join Abraham Lincoln in rejecting a judicial power to set policy for the Nation, and in rejecting the notion that construction and interpretation of the Constitution is the sole province of the Judicial Branch.

In his First Inaugural Address, Lincoln concluded that the Supreme Court, if its decisions resolved questions of national policy conclusively, would supplant the People as their own governors.  As a People, have we actually come to the place that Abraham Lincoln forecast over 150 years ago?  Then, as the nation reeled from its battles over regulation or prohibition of slavery and over the legal theory of secession from the Union, the Supreme Court took a swipe at the policy-making and legislative power of the People, exercised through the Congress, when it decided Dred Scott versus Sanford

Dred Scott had lived most of his life in the service of a military doctor and his wife. In the course of that service, Scott had lived in States that recognized the right to own slaves and in States that prohibited slavery and rejected the idea of ownership of one man by another.

In Dred Scott, the Court rejected Scott’s claim that, because he had resided in Free States while under the ownership of his master, he had, in fact, become a free man.  So, in essence and in fact, the Court rejected Scott’s claim to freedom.  The Supreme Court -- ever the beacon of human rights and liberty -- concluded that Africans in America were not citizens of the United States, could not, in fact, be citizens of this Nation.  Consequentially, the Court concluded that Scott lacked standing to sue in federal court.  On the substantive question, the Court concluded that restrictions on owning and importing slaves -- imposed on federally administered territories prior to their admission to the Union as States – had been beyond the power of the Congress to impose. 

The upshot of the matter:  Scott’s case was dismissed.  More importantly, the decision resolved two important questions of constitutional construction.  As a consequence important policy questions arising from the dispute among the States over slavery were, seemingly, placed beyond the power of the People, through their Legislatures, to address.

That result, of great moment to People who would govern their own affairs, inspired Lincoln’s observation of an eminent tribunal, the Supreme Court, displacing the People in the affairs of policy making.  In his Address, faced with resolutions of secession and threats imminent to federal offices and officers within the Southern States, Lincoln would not avoid addressing these same central issues of policy purportedly put beyond republican amelioration by the Dred Scott decision.

Lincoln observed the none-too-subtle shift of the locus of power accomplished by settling upon the Court a legitimized power to impose policy by simply deciding case: 

I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.

As Lincoln observed, in its deciding of Dred Scott, by arrogating to itself the power to interpret the Constitution as its exclusive province, the Supreme Court denied to the Congress a power to regulate slavery in federally administered territories.  In doing so, it stripped the People of the United States of the power to be their own governors in this particular.  Thus, as he said, to that extent the People will have surrendered that power into the hands of that “eminent tribunal.” 

Lincoln, ever a gentleman, did not call out the justices of the Court as fabricators.  In fact, his address portrays the Court as having no choice in the matter but to decide the cases before it:  “Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.”   Without imputing to Honest Abe a lack of candor regarding his views on the Court’s obligations, his words suggest a mechanical, preference-free, dispensation of justice.  Lincoln’s caution in the moment has not restrained others to make more candid observations.

Mark DeWolfe Howe, attorney and historian, rendered one of the most disturbing indictments of the Supreme Court’s decision making process with which I am familiar.  Howe, lecturing at Harvard Law School, responded to the Court’s decisions on religion and the law.  The lectures, given in the early 1960’s, became the basis of his book, “The Garden and the Wilderness.” As Howe set the stage for his exploration of the Court’s Religion Clause cases, he first addressed the roles played by the justices in deciding cases. 

Of course, their principal roles were as judges of the Nation’s highest tribunal.  In reaching their decisions, Howe noted, the justices often also took on the role of historians.  In his view, however, the justices as historians often subverted history in service of intended outcomes. 

Howe began his consideration of the Religion Clause decisions by demonstrating that the Court’s choice to pick a metaphor – the wall of separation between church and state – was, in fact, the Court’s choice to pick an outcome.  More, by focusing on Jefferson’s Wall of Separation, the Court put its historical and juridical focus on the history of the struggle for religious freedom in Virginia. By doing so, the Court imported to the meaning of the Religion Clause the peculiarities of Virginia’s struggle.  Indeed, the Court vaunted the Virginia struggle for religious liberty over every other possible source of meaning for the Religion Clauses.

Howe examined the intersection of those two roles played by Supreme Court justices:

Among the stupendous powers of the Supreme Court of the United States, there are two which in logic may be independent and yet in fact are related.  The one is the power, through an articulate search for principle, to interpret history.  The other is the power, through the disposition of cases, to make it.  Phrased somewhat differently, the contrast which I have in mind is that between the scholar’s capacity to conduct a groping search for past even and initial purpose and the statesman’s talent for making the decisive choice of a rule of conduct which he believes to be suitable for the government of the future.

Howe suggests that a justice may be a scholar and a statesman of a kind, but that, in rendering decisions, the risk is real that a justice can, in fact, become a policy-maker designing our lives under the framework of law.  He continues:

It is the common-law tradition, perhaps, which leads the Court and those who study its processes to assume (or had I better say “pretend”?) that the history which is made by the Court’s decisions is merely the realization of the past which the learning of the justices and their clerks has uncovered.  The judge as statesman, purporting to be the servant of the judge as historian, often asks us to believe that the choices that he makes –the rules of law that he establishes for the nation—are the dictates of a past which his abundant and uncommitted scholarship has discovered.

From these thoughts, Howe contemplates that a reasonable reader will have sensed in his words doubt of the Court’s adequacy in interpreting our nation’s history.  If the reader has done so, Howe explains, it is likely the product of the reader realizing the intention of the writer:

I believe that in the matters at issue the Court has too often pretended that the dictates of the nation’s history, rather than the mandates of its own will, compelled a particular decision.  By superficial and purposive interpretations of the past, the Court has dishonored the arts of the historian and degraded the talents of the lawyer.  Such dishonoring and degrading may not be of large moment when the history that the Court manipulates is merely “legal history”—the story, that is, of the law’s internal growth and development.  When, however, the Court endeavors to write an authoritative chapter in the intellectual history of the American people, as it does when it lays historical foundations beneath its readings of the First Amendment, then any distortion becomes a matter of consequence.

That is, indeed, a telling indictment of Supreme Court decision-making processes in the Religion Cases from the late 1940s forward.  The indictment applies, I think, with equal weight to Judith Rogers’ opinion for the DC Circuit on the Origination Clause, and her application of her construction of the Origination Clause to Matt Sissel’s challenge to the tax imposed under the individual mandate.  

There is no clause of the Constitution assigning to the Supreme Court the power or duty to construe the Constitution in a manner conclusive of constructions given to that document by the Congress or by the President. If you doubt it, read Article III of the Constitution for yourself. Today, of course, few dispute the Court’s pre-eminent authority to do so, even in the absence of an express designation of such a duty or power.  That outcome might have surprised some delegates at the Constitutional Convention of 1787, but would not have surprised Alexander Hamilton, the author of the Federalist No. 78.

Although the delegates to the Constitutional Convention agreed to conduct their sessions in secret, several attendees took notes, and a number of speeches, in addition, were rendered from written manuscripts.  Together the notes and speeches give us the opportunity to listen in as the Convention considered how to make “a more perfect Union.”

Early in the Convention, James Madison’s proposal, “The Virginia Plan,” was offered for the consideration of the delegates then present.  Among the points proposed was one to create a council that would, essentially, sit in judgment of congressional acts to determine their constitutionality and wisdom.  This text explains the point proposed:

Note that Madison expressly proposed including members of the federal judiciary on a Council to provide a pre-operative clearance for federal legislation. This proposal was rejected, not just once, but on three separate occasions.  The only provision of the Constitution that approached it was the grant of the veto power to the Executive, itself subject to override by two thirds votes of each Chamber of the Congress.

Unfortunately, for truth and for history, the delegates to the Constitutional Convention pledged themselves to secrecy regarding their proceedings.  As a consequence, no general awareness existed amongst the People and the States that this idea – a “super-legislature” that could sit in judgment of the constitutionality of the Acts of the Congress and the laws of the States – had been rejected three times in the considerations of the Convention.  Despite the rejection of the idea of a “council of revision,” delegates did argue that the structure of the Constitution supported the notion that the federal courts would have authority to decide such questions of constitutionality, and the idea of such a power was also the subject of debate in the Ratification Conventions of the States.

I would not want to leave you with the notion that this power, the judicial power to declare an act of Congress void, or to interpret the meaning of the Constitution, was novel and never considered by the Convention that framed the Constitution, or the State Conventions that ratified it.  Rather, it is sufficient to note that there is a history to this question of the power of constitutional interpretation, and to note that wiser minds than mine have disputed that it is the sole or exclusive province of the Courts to do so.

Beyond the veil of secrecy for the Convention, there was also the campaign of propaganda related to the debates in the States over ratification.  That propaganda war, principally consisting of published letters by opposing factions of Federalists and Anti-Federalists, served to educate the People as to the proposed meaning of the Constitution, its purpose, its strengths, its weaknesses and its dangers. 

One Constitutional Convention delegate, Robert Yates, took the Antifederalist position during the debates of the States on ratification.  In his eleventh essay opposing the Constitution, writing under his nom du plum “Brutus,” explained the danger of depositing the sole power of construing the Constitution in the Judicial Branch:

Arguing for the Constitution, and seeking to mollify fears that a power of judicial review would make the Judicial Branch central and powerful to the federal government, Alexander Hamilton expressed the view that, to the contrary, the Judiciary would least likely present threats to the rights and liberties of the people:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Among those wiser minds, in addition to Lincoln, and delegate Robert Yates, Jefferson is particularly notable.  His thoughts on this power of the judiciary and his conclusion of its danger to self-government he expressed in a letter to William Jarvis, written in 1820.  Jarvis had provided to Jefferson a copy of his book, “Republican.”  Having given the book a cursory examination initially, Jefferson chose to address the question of the power of judicial review in his letter of appreciation for the book.  He wrote: 

Still, while maintaining the respect of those who studied the records of the Convention, of the Ratification Conventions and of the public dialogue of the Federalist and the Anti-Federalists, one could yet hold the view that the Judicial Branch did not own the Constitution, nor possess the sole power to construe it, nor the power to declare the Acts of the Congress or of the State legislatures null and void. Ultimately, such a view notwithstanding, the Supreme Court, in a series of decisions, arrogated to itself the power to interpret the Constitution as the final arbiter of its meaning, and the powers to declare federal and state laws unconstitutional.

Professor Howe, in the lectures mentioned above, nonetheless counsels us that we are not the mere pupils of a history drafted and crafted by judges.  Instead, as to the general history of our People, of our government, and of our founding, we have judgment equal in significance to that of judges.  What remains, then, is for we, the People, to consider whether Judge Judith Rogers and her colleagues correctly construed the Origination Clause and correctly applied that Clause to the challenge to the individual mandate penalty under Obamacare.

Wednesday, September 10, 2014

Obama vs. Ft. Bliss: Scratch Golf Pursuit Produces Leaky Border Syndrome

I remember laughing, while shopping at Walmart back in 2012, when I read the warning label on a dietary aid, which advised that a possible side effect was "leaky bowel syndrome."

Obama has given our nation something worse than "leaky bowel syndrome."  After all, with LBS, you just gotta get hooked up with some Depends, or a similar product.  But with Obama's version of LBS -- Leaky Border Syndrome -- you get a full-on invasion of unchecked magnitude and nature.  Worse, while there are, undoubtedly, many coming into the nation of general good will, seeking a better future, because the flood is unchecked and without discretion, there is the grave, imminent and perceptible danger that those of fixed ill and evil intent also flow into the Nation.

One consequence of Obama's Leaky Border Syndrome is the high alert status at Ft. Bliss, in El Paso, Texas.

This matters to me for more reasons than the very personal ones of family members stationed at, or living aboard, the base.

This matters because our Nation's liberty is often held captive to our Nation's security.  Even as long ago as the Civil War, when Lincoln unconstitutionally suspended Writs of Habeas Corpus, that connection was patent.  When opponents of government actions (or inactions, as is the case with the First Golfer) speak truth to power, national security is often the first refuge of officious bureaucratic scoundrels who would repress political expression.

Obama does not govern in the sense of a wise, tending, gardener caring lovingly for a treasured secret garden.  Instead, he is very like that gardener described in the parable of the wheat and tares.  Not the farmer that planted the crop of wheat, Obama is the sower of tares in the garden that is our Nation.  His plea for "hope and change" was never founded on a plan for "hope and change."  He never has had, currently has not announced, and shows no sign of a forthcoming plan for "hope and change."

Instead, his seeds are ones of discontent, race-baiting, class warfare.  But just like the sower of tares in the parable, his labor was brief and then his future involvement in the garden nonexistent.  Obama's promise, in that Chicago speech following his 2008 election, promising change, marked the end of any actual tending of the American garden by this President.  He saw a field ready for planting, due to the war weariness of eight years of turmoil following the terrorism of 9/11, and the fomented discontent kept at a low boil by a media that makes no bones about its leftist bias.  And where others had tended the American garden with a view toward continuous growth and improvement, Obama spread his bogus "hope and change" over us all.

Now we live under the poor husbandry of a man who would be a scratch golfer, but who will not commit his labors, his time, his thought, to securing the Nation from external and internal dangers. And this is Obama's crime, as evidenced by the required security elevation at Fort Bliss in Texas: utter, complete dereliction of duties.  It remains to say only this:  there is no chance that Obama will be taking a blue ribbon in the State Fair, unless they start offering prizes for best grown weeds.