Sunday, May 31, 2015

Obama Golfs While the Ship of State Founders ... Shades of the Exxon Valdez

A piece of economic news analysis crossed the wires today and it caught my eye. Terrence Jeffries, on the CNSNews site reveals the abyssmal economics of President Obama. It turns out that, during the period since such statistics have been kept by the federal government, President Obama has the lowest average 1st quarter (Jan-Mar) growth in Gross Domestic Product annually of any President. Worse, that dismal performance is literally just that dismal even if the very first quarter of Obama's first term is omitted in calculating his numbers. Here's a salient portion of Jeffries' post:
Even if you leave out the first quarter of 2009—when the recession that started in December 2007 was still ongoing--President Barack Obama has presided over the lowest average first-quarter GDP growth of any president who has served since 1947, which is the earliest year for which the Bureau of Economic Analysis has calculated quarterly GDP growth. 
The analysis is tough on Obama's leadership in tough economic times. When the 2009 first quarter is omitted, GDP is a measly 0.4%. If we go hard, and include the very first quarter of the Obama years, the picture is worse, with a negative average, -0.43%:
In the seven first quarters during Obama’s presidency, it has declined by an average of -0.43 percent. And if you leave out the first quarter of 2009 and look only at the first quarters of the six years since the recession ended, it has averaged only 0.4 percent.
Read it and remember:  Obama has lowest average first quarter (Jan-Mar) Gross Domestic Product of any President SINCE RECORDS HAVE BEEN KEPT.

Ask yourself, how can hope and change look so hopeless and unchanging?

Is it because merely "hoping" and merely talking about "change" has nothing to do with having the skill sets necessary to bring about change and to create conditions in which we each can do those things with our lives, our skills, our possessions, to convert hopes into realities? Is it that Obama was a flash in the pan, that there was potential and now we are witnessing the eight year demise of it?

No, Obama was never a "flash in the pan."

That epithet belongs to the cases in which a fleck of gold flashes in sunlight as a miner is engaged in a search for gold. After the era of gold rushes, "flash in the pan" came to represent folks that briefly offered potential but subsequently couldn't deliver substance. Redskins fans may remember Heath Shuler. Heath was one of our many "flashes in the pan."

But Obama brings not even a single glimmer of gold to the enormous undertaking of the Presidency. He never did. Obama answers the question, "what would have happened if ________________ were elected to the Presidency?"  Simply fill that blank in with the name of any number of rabble rousers (that's an oldster's way of saying, "community organizer").

For example, in the early 20th Century, Eugene Debs was the heart and soul of the IWW (International Workers of the World) and of the Socialist Party. Debs ran for president the way I play the lottery, more often than is wise and with no chance of winning. In his best run ever, Debs gained a total of 5 percent of the popular vote and no electoral college votes. His last run, in 1920, was from a jail cell.

Like Obama, Debs really was a "community organizer." He organized labor communities, he advocated labor rights, he -- unlike Obama -- left an accessible record of writings preceding his efforts to gain the presidency. His written and spoken oratory is often compared to evangelists for his zeal. Unlike Obama, those who knew him also clarified that his fiery speaking belied a kindliness and compassion in his personal relations.

But what would America have looked like had Debs been elected President? I think history and the judgment of 55 million Americans is telling us just exactly what a country led by a community organizer resembles.

It resembles a Gross Domestic Product that cannot be called lackluster, only because it is worse than that.

It resembles nearly 100 million men and women permanently despairing of finding work, leaving the work force, and by doing so, allowing the community organizer in chief to tout an unemployment number artificially lowered by the exclusion of those who just aren't looking any more.

It resembles nearly 50 million Americans drawing SNAP benefits, Supplemental Nutrition Assistance Program benefits, because their two and three part time jobs in the Obamacare wrecked employment field won't bring home the bacon. No literally, even bacon, which is still often selling at four or five dollars a package, even though the packages are now 12 ounces instead of a pound!

It resembles nothing like the Utopian benevolent society claimed to be the hope and the change we need. It resembles Baltimores. It resembles Fergusons. It resembles no place you want to be, and no place you'd want to raise your family, or risk your labor and investment.


Saturday, May 30, 2015

Translating Hillary

Hillary is once again faking a southern drawl.

We all remember the amusing, "I dont feel no ways tar'd" episode a few years back now. Of course, it's not easy to maintain an adopted drawl. During her South Carolina swing, Hillary affected that Southern twang, but unlike an operatic diva, she just couldn't hold the note.

Then it struck me.

Hillary needs her southern affectations -- just like everything else about her -- scripted.

So, thanks to the Dialectizer website, I propose that we do just that! Let's draft her southern affected messaging for her. To get her started, I used the dialectizer to translate her April 2, 2015 remarks on the negotiations with Iran regarding nuclear power and weapons.

Here's her original text:

The understanding that the major world powers have reached with Iran is an important step toward a comprehensive agreement that would prevent Iran from getting a nuclear weapon and strengthen the security of the United States, Israel, and the region. President Obama and Secretary Kerry have been persistent and determined in pursuit of this goal, building on a decade of bipartisan pressure and diplomacy. Getting the rest of the way to a final deal by June won’t be easy, but it is absolutely crucial. I know well that the devil is always in the details in this kind of negotiation. So I strongly support President Obama and Secretary Kerry’s efforts between now and June to reach a final deal that verifiably cuts off all of Iran’s paths to a nuclear weapon, imposes an intrusive inspection program with no sites off limits, extends breakout time, and spells out clear and overwhelming consequences for violations. The onus is on Iran and the bar must be set high. It can never be permitted to acquire a nuclear weapon. It is also vital that these efforts be part of a compressive strategy to check Iran’s regional ambitions, defend our allies and partners, and reinforce American leadership in the Middle East. There is much to do and much more to say in the months ahead, but for now diplomacy deserves a chance to succeed.

Here's the much improved Southern:

Th' unnerstan'in' thet th' majo' wo'ld powers haf retched wif Iran is an impo'tant step toward a comprehensive agreement thet'd prevent Iran fum gittin' a nucular weapon an' stren'then th' security of th' United States, Israel, an' th' region, as enny fool kin plainly see. President Obama an' Secretary Kerry haf been persissent an' determined in pursueyt of this hyar goal, buildin' on a decade of bipartisan pressure an' diplomacy. Gittin' th' ress of th' way t'a final deal by June won’t be easy, but it is absolutely crucial, ah reckon. ah knows fine thet th' devil is allus in th' details in this hyar kind of negotiashun. So ah strongly suppo't President Obama an' Secretary Kerry’s effo'ts between now an' June t'retch a final deal thet vahifiably cuts off all of Iran’s paths t'a nucular weapon, imposes an intrusive inspeckshun program wif no sites off limits, extends bustout time, an' spells out clear an' on overwhelmin' cornsequences fo' violashuns. Th' onus is on Iran an' th' bar muss be set high. It kin nevah be permitted t'acquire a nucular weapon, as enny fool kin plainly see. It is also vital thet these effo'ts be part of a compressive strategy t'check Iran’s regional ambishuns, defend our allies an' partners, an' reinfo'ce South Car'linan leadership in th' Middle East. Thar is much t'do an' much mo'e t'say in th' months ahaid, but fo' now diplomacy desarves a chance t'succeed, cuss it all t' tarnation.

I must say, the whole process of affecting a drawl to try and convince folks that by nature and right ought to be recoiling at the idea of your presidency is an amusing thing. No, really. This hyar is mo'e fun than a barrel of monkeys. Eff'n yern't too busy, try it out! Fry mah hide!


Thursday, May 28, 2015

Lesser Solution: Well-meant Window Dressing?

Against two direct means of undoing Roe's usurper mischief – Supreme Court repentance and self-correction or constitutional amendment – the House of Representatives proposes a federal statute banning many abortions after 20 weeks gestation (but not most abortions because, after all, most abortions occur before 20 weeks, and not all abortions after 20 weeks).

Congress has previously considered significant abortion legislation, and adopted a few significant abortion-related bills. Among those bills, there have been ones finding that human life begins at conception and that conceived humans are persons under the Constitution, and others have been proposed limiting the jurisdiction of federal trial and appellate courts to hear challenges to state laws imposing restrictions on abortion. Those proposed bills never passed Congress.

Congress has also entertained the possibility of propounding constitutional amendments to the States on the topic. No amendment has passed out from the Congress to the States for ratification.

That Congress could act to restrict, to restrain, to reduce, abortion funding, international abortion services, and the like, is obvious. The Hyde Amendment, for example, has been part of federal law for nearly four decades, and prevents Medicaid funding of most abortions. In addition to the Hyde Amendment funding restriction, Congress also imposed a restriction on abortion referrals by contractors participating in Title X Family Planning programs.

Congress has also imposed a restriction on the barbaric "intact dilation and extraction" abortion, the so called "partial birth abortion." That ban survived constitutional scrutiny when the Supreme Court considered challenges to it in Gonzales v. Carhart.

Now, with Roe having remained a viable decision of the Court for four decades, we might be inclined to forget that killing children before birth has not always been legal in the United States. Harry Blackmun's phony history of abortion regulation, painfully misstated in Roe v. Wade notwithstanding, abortion always was a criminal enterprise in the United States. When the colonies declared their independence from Britain, they immediately adopted English Common Law as the rule of decision for such matters. In turn, at least since the publication of the Fleet Street Commentaries on the Law, around the end of the thirteen century, English Common Law treated abortions performed after "quickening" as felonies. (In fact, in the Christian West, since the time of the Apostles, abortion was always taught to be a moral wrong; in the Didache, or the Teaching of the Twelve, the teaching is precise: "you shall not murder a child by abortion nor kill that which is born").

Once the States began enacting statute law to modify the English Common Law, they simply transformed the criminal prohibition of abortion from the common law framework to a statutory framework. Missouri, for example, which was admitted into the Union in 1821, included a criminal prohibition of abortion virtually immediately, with the Legislature's enactment of its first criminal code. States that had not adopted criminal codes prohibiting abortion continued to treat abortion under their common law as a crime until criminal abortion statutes were adopted.

It was not until Roe v. Wade that the Supreme Court usurped to the federal leviathan the power of the States to regulate the crime of abortion. Until then, there was no reasonable question but that the States had, when drafting and ratifying the Constitution, retained to themselves plenary power to enact criminal laws for the regulation of public health, safety and morals. In fact, until Roe v. Wade, it would have been thought, by legal theorists, a queer notion to ask by what right the States enacted a criminal code restriction on abortion. Indeed, until the newspeak of the radical abortion legalization movement dominated the Supreme Court, the odd notion would have been that Congress had power to regulate and criminalize conduct historically within the exclusive province of State regulation.

And that last, my friends, is the disconcerting rub of the PCUCPA. By what power, by what right, does Congress enact a criminal statute regulating conduct that, until Roe v. Wade, was certainly the sole prerogative of the States to regulate or to prohibit? If there are legitimate methods for the federal Congress to do so, those methods arise from specific powers granted to Congress in the Constitution. In the PCUCPA, the pre-ambulatory matter expressly states that Congress relies on its Commerce Clause power and its Enforcement Clause power. Section Five of the Fourteenth Amendment -- the Enforcement Clause -- expressly grants to Congress the power to enforce the provisions of the Amendment.

Historically, Congress has employed its Commerce Clause power in certain cases of clear interstate criminal activity. The Mann Act prohibits interstate transportation for the purposes of prostitution. Such a restriction states clearly the connection between the harm to be addressed and the power of Congress to address it. The harm Congress addressed in the Mann Act was transporting women across State lines to put them to work as prostitutes in the early 20th Century American sex trade.

The PCUCPA, other than the assertion in its preamble that Congress relies on its Commerce Clause power, does not use language typical of enactments that depend on a nexus with interstate commerce sufficient to justify a federal legislative solution.

Consider, for example, the Religious Land Use and Institutionalized Persons Act of 2000. Following the Supreme Court’s decision striking down a provision of an earlier Act, the Religious Freedom Restoration Act, that created a cause of action against States and localities in certain cases arising from conflicts from demands of government inconsistent with private religious duty, Congress passed, and President Clinton signed RLUIPA into law. To anchor this new law to a clearly permissible base of power, Congress rested its authority on the Spending Clause and the Commerce Clause. In each case, Congress used language quite typical to such exercises.

Here is the relevant portion of RLUIPA:
Title 42 USC § 2000cc—Religious Land Use and Institutionalized Persons Act(a) SUBSTANTIAL BURDENS.— 
(1) GENERAL RULE.—No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution— 
(A) is in furtherance of a compelling governmental interest; and  
(B) is the least restrictive means of furthering that compelling governmental interest. 
(2) SCOPE OF APPLICATION.—This subsection applies in any case in which— 
(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;  
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or  
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.
Notice the language underlined in paragraph (a)(2)(A)?

That language ties the statutory duty to federal funding. It is typical of exercises of the Spending Clause. The notion is probably familiar to you. You may recall a time when the legal drinking age in virtually every State was 18 years of age. Congress tied receipt of federal funds to a raised drinking age of 21 and virtually every State followed along. In like vein, when the campaign to reduce highway driving speeds to 55 miles per hour needed an assist, Congress tied receipt of federal highway funds to the enactment of a State maximum speed limit of 55 miles per hour, and again, the States went along.

No violation of State sovereignty prohibited by the Constitution occurs when Congress entices States to adopt laws by offering funding or other benefits; these are not cases of the carrot and the stick, but of the carrot being offered to entice desired behavior from the 50 “horses.”

Now, notice the language italicized language in paragraph (a)(2)(B)?

That language ties the statutory duty to interstate commerce. That kind of language insures that Congress is not overreaching when it acts under the Commerce Clause. It is the typical and usual language in such cases.

As passed by the House, however, the PCUCPA does not, for example, limit itself to those abortions in, or affecting, interstate commerce. Such language is more than typical, it is a significant precursor to any judicial evaluation of whether the PCUCPA can survive scrutiny as an exercise of the Commerce Power. Merely asserting that a power of Congress justifies a particular statute does not resolve the question. If the PCUCPA is to survive such scrutiny, then this bill need substantial buttressing in the form of more formal language regarding the nexus to interstate commerce powers of Congress.

I doubt, as well, that a claim that the PCUCPA is an exercise of the Enforcement Clause power of Congress under the Fourteenth Amendment. The Fourteenth Amendment, in Section Five, grants to Congress the power to enact legislation enforcing the Amendment:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
If the PCUCPA advances in Congress, questions will arise about the basis on which Congress acts. In fact, those questions are already being raised. Professor Jonathan Adler, of Case Western Reserve University School of Law, tweeted:
“Q for conservatives upset about pulling of abortion bill: Where's the enumerated power that lets Congress do such a thing?”
While that puts the question rather broadly, rather than providing a tight focus on Congress’ Enforcement Clause power, it does show that some are keeping their eye on the ball, even if it is not yet clear which power, enumerated or imagined, upon which the PCUCPA may be enacted.

Questions related to the Enforcement Clause basis for the PCUCPA cannot be gainsaid, ignored, or whistled past as though such questions were the tombstones of a cemetery on moonless night. Particularly where the Congress so seldom addresses the problem of legalized abortion, we should have a reasoned discussion on such questions as whether the PCUCPA constitutes an exercise of the Congress' Section 5 power, whether that exercise is a legitimate one, and whether the Supreme Court would sustain the Act in a challenge to its constitutionality.

For my part, having given the questions some thought, and the law related to them some consideration, I am not convinced that the PCUCPA constitutes a legitimate exercise of the Enforcement Clause power. At least, I am fairly convinced that the Supreme Court will not, without a sea change, hold that the PCUCPA is a constitutionally valid exercise of that power.

We are not without guidance from the Supreme Court regarding its views on legitimacy of Congress’ invocation of the Enforcement Clause power.When the Religious Freedom Restoration Act came before the Supreme Court, the Court examined the claim that Congress exercised its Enforcement Clause powers in enacting RFRA. Under RFRA, Congress imposed on both the federal government and the States certain duties when confronted with claims that government action imposed a substantial burden on the exercise of religion. In City of Boerne v. Flores, the Supreme Court considered a Texas city’s argument that Congress had overreached when it imposed such duties on States and localities as an exercise of its Enforcement Clause power.

The Supreme Court has used a fairly straightforward explanation of when Congress has properly invoked its Enforcement Clause power. Because of the language of Section Five, the Court evaluates Congressional actions to discern whether its actions are remedial in nature – curing past wrongs – or whether they are substantive in nature – creating new rights or obligations not previously embodied in law. To clarify, a doctor gives you antibiotics to cure or remedy a bacterial infection; she gives you a vaccination to prevent a new or different infection.

In City of Boerne, the answer to the question whether the duty Congress imposed on States and localities was remedial or substantive ultimately came down to Justice Kennedy’s conclusion that RFRA created a new statutory legal obligation for States and localities and granted a new, statutory cause of action or defense to religious claimants. For that reason, the Court concluded that RFRA constituted a substantive enactment was beyond the scope of the Enforcement Clause power of Congress. Here is the central passage on this point:
Regardless of the state of the legislative record, RFRA cannot be considered remedial, preventive legislation, if those terms are to have any meaning. RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections.
To fully grasp why RFRA’s application to the States worked a “substantive change in constitutional protections,” it must be remembered that RFRA was, itself, an effort by Congress to undo the harms it associated with a prior Supreme Court decision. America’s religious communities and many religious liberties experts viewed that decision, Employment Division v. Smith, as having struck a terrible blow against religious freedom, making a nullity of the Free Exercise Clause.

Smith addressed unemployment compensation claims by two drug counselors dismissed from private employment when it was learned that they used peyote as part of Native American religious rituals. Earlier Supreme Court cases had provided a more genial construction of the Free Exercise Clause, under which the denial of such benefits would be subject to a severe form of constitutional review usually associated with rejection of the State’s position. In Smith, however, Justice Scalia set out a greatly narrowed interpretation of the Clause and of the Court’s own prior cases, leaving the unemployed drug counselors high and dry as to their compensation claims.

Three years after Smith, Congress responded by enacting RFRA. President Clinton signed RFRA into law. RFRA bound the federal government and the States to the pre-Smith law and decisions, essentially rejecting the Court’s decision there. RFRA, in fact, created a statutory cause of action that had not previously existed as a means of vindicating religious freedom rights against the federal government, States and localities. It was the application of RFRA to the States that the Court found to be an overreach, based on its conclusion that it was a substantive enactment, rather than a remedial one.

Turning back to the PCUCPA, the questions asked in City of Boerne about RFRA must be asked about the House’s bill. Is it merely remedial? Or, does it create a new substantive right.

To ask the question is to answer it.

The Supreme Court has stuck fastidiously to its “central holding in Roe.” Justices O’Connor, Kennedy and Souter summarized that central holding this way:
It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.
If the PCUCPA is to be sustained by the Supreme Court, and if the Court will sift the Act and its purposes for a basis in the Enforcement Clause power of Congress, then the Court will, unless it abandons Planned Parenthood v. Casey (a development that I would welcome), evaluate the PCUCPA in light of Roe’s central holding. If it does, the Court will confront the contentious dispute over viability.

Viability at 22 weeks, with appropriate medical treatment, was noted in a recent study covered by the New York Times here. (Lower federal courts continue to follow Casey and its Roe centrality reasoning. On May 27, 2015, the US Court of Appeals for the Eighth Circuit agreed with a federal trial court that a ban on abortions later than 12 weeks gestation violated Casey’s viability of the fetus holding. In fact, on May 29, the Ninth Circuit Court of Appeals issued a decision affirming a trial court injunction preventing enforcement of an Idaho statute banning most abortions after 20 weeks. That statute, as with the one we are examining, was a Pain-Capable Unborn Child Protection Act.)

If the Court does as its own cases and history teaches us it will, then the Court is not likely to agree that Congress – by adopting the 20 week framework – is adhering to Roe’s central holding as to viability. On that basis alone, the Court would likely find the PCUCPA an overreach. To do otherwise would be to blink at Congress making a close judgment call on viability in an area of the law where the Court has acted the jealous guardian of the essential holdings of Roe.

More to the point, why does Congress think that we should engage in tangential maneuvering? Why make this about the possibility -- the reality -- that when white coated technicians with medical licenses hack limbs, sever heads, disembowel abdomens, there is not merely sensation, but the inexplicable unbearable overwhelming pain of the Freddy Krueger-ed to death by a State-licensed physician. Why, if this is about the Enforcement of the rights of equal protection and due process of fetal children, why not squarely set the question. Let's not be the kind of dishonest brokers of our ideas that too often have been the voice of abortion support at the Supreme Court and in the Congress. If Congress contends that this is an effort to provide a remedial solution to a problem experienced by fetal children in equal protection and in their rights, we should straight up declare that fetal children are persons under the Constitution, and that, as persons, they are entitled to this remedial action by Congress.

While the Act, if it were to become law, would be a welcome stopgap provision of law in respect of its protection for one class of fetal children, it could no more be sufficient as a complete solution than could a different Thirteenth Amendment, one that prohibited slavery only among those Africans aged 30 or older. Our history as a People tells us that what is needed to rebuke an error of Supreme proportions is more than stopgaps.

"Personhood," That is, Status as a Person in the Sense that "Person" is Used in the Constitution, Should be Resolved by the Constitution

If, at this point, I turn a critical eye to the Pain-Capable Unborn Child Protection Act, if I even suggest that it should not be the basket in which we place any of our eggs, let alone all of them, I do it solely because I find that the Act is a poor substitute for the proper response to the growing body of evidence that fetal children are capable of, and do experience, pain.

As an aside, so that you can measure my bona fides as a voice for life and against abortion, let me tell you about me.
  • I first articulated a pro-life opinion in public as a Senior in high school at Lejeune High School, (Class of 1976) in an Advanced Biology class taught by Debra Hansen. The position I held then flowed principally from a moral conclusion regarding the act of abortion. As I moved into my adult years, I read extensively about abortion, its causes, its methods, its impact. My moral judgment became seasoned with other, equally valid, grounds of justification for the conclusion that abortion is always wrong.
  • Soon, my opinion on abortion translated into action. I began speaking out against legalized abortion, including picketing and demonstrating at a local abortion facility here in Jacksonville, North Carolina. Eventually, in 1982, the rhetoric I and my brother, David Henderson, employed, resulted in a lawsuit against us for defamation by the owner of the abortion business. We prevailed. The defense of our constitutional rights of freedom of speech was accomplished by the North Carolina ACLU and by a newly founded organization, the Rutherford Institute. 
  • After we prevailed, my wife and I relocated to St. Louis University so that I could attend the Law School at St. Louis University. In hindsight, no better training ground exists for a pro-life advocate that offered by an urban Catholic University well down the road in its own process of surrendering its soul in pursuit of economic survival. The law school played welcoming host to a vocal pro-abortion element, embodied by the Women's Law Caucus. How hostile could Catholic law school be to pro-life expression? I once was called to an assistant dean’s office for posting a message on the student bulletin board comparing the Religious Coalition for Abortion Rights to Nazi apologists for the Holocaust. Ass. Dean Smith told me that my posting was "the most unprofessional thing he'd ever seen in the law school." Oddly, that was just days after two of my classmates were caught, in the act of copulation, on a classroom floor, by an adjunct professor arriving to teach an evening class!
  • Upon graduation, for the next twenty-five years, I practiced law with nonprofit organizations that regularly and consistently included as a segment of cases a variety of opportunities for me to represent pro-life activists and anti-abortion demonstrators. In the process, I represented:
    • teens seeking protection from parents trying to force them to have abortions, 
    • protesters threatened with arrest for the messages on their signs, 
    • pregnancy resource centers threatened with the imposition of a duty to spread the pro-abortion messages of the government. 
  • If you have heard of Operation Rescue, Christian Defense Coalition, Randall Terry, Joseph Foreman, Jayne Bray, Michael Bray, Patrick Mahoney, Keith Tucci, Jeff White, Rob Schenck, Paul Schenck, Jeannie Hill, then you’ve heard of my clients or some of them.
Because the PCUCPA is so unlikely to become law, I feel at liberty to observe that the Act is little more than window dressing on a macabre set piece: the more than two score years of legalized child killing in the United States. In the face of the horror, the grinding inhumanity, of our abortion culture, can it possibly be that the best that the House of Representatives can muster is a bill doomed to die aborning -- much like the offspring of an abortion-bound woman -- before it can ever be born.

As a matter of our national history, the Civil War, a national bloodletting of nearly a half million lost lives and untold lost prosperity, was the method by which the Supreme Court's disregarding of the personhood of Africans was, ultimately, corrected.

The right answer to the ongoing holocaust of legalized abortion in America can be found in the historic response of the Congress, the States and the People to the previous erroneous decision of the Supreme Court in Dred Scott v. Sandford. That historic response consisted of three proposed amendments to the Constitution, which became the Thirteenth, Fourteenth and Fifteenth Amendments to the US Constitution.

In Dred Scott, the Supreme Court held that blacks were not, and could never be, citizens of the United States. For that reason, courts could not entertain lawsuits by blacks seeking a declaration that, due to their sojourn in the Free States, they had acquired status as freedmen and could not, thereafter, again be subject to bondage. Civil war and nearly a half million lost lives later, the Nation repudiated the Supreme Court by ratifying the three amendments, ending slavery, guaranteeing an equal right to vote, and, under the Fourteenth Amendment, granting status as US citizens and State citizens to blacks.

Just over a century later, in Roe v. Wade, the Supreme Court likewise concluded that children before birth were not persons in the constitutional sense. For that reason, their own interest in securing their right to life and liberty, and the interests of the States in securing their rights to life and to liberty were completely discounted by the Supreme Court as against the woman's liberty interest in choosing to have an abortion.

In the intervening period, there have been very few shots fired, but so many more lives taken than were lost in the Civil War. Then, in his second inaugural address, Lincoln suggested that the Civil War was a judgment of God on this Nation, in which "every drop of blood drawn by the lash" would have to be answered by "one drawn by the sword." Ultimately, the Confederacy surrendered to the Union, and the three Civil War Amendments were propounded to the States by Congress and ratified by a sufficient number of States. With those amendments, the Constitution expressly read directly contrary to the view of it previously asserted by the Supreme Court in Dred Scott.

Our history -- regarding the constitutional status of blacks -- suggests that there are two sound answers to the illicit Roe v. Wade decision and its progeny.

One answer could come from the Court. The Supreme Court could revisit and overturn Roe, thereby restoring to the States the power to regulate abortion or to prohibit it entirely. That has not happened, not in the more than forty years since the aberrant Roe decision.

There was a time when I, young and idealistic, thought the possibility of an internal correction by the Court could resolve the wrong of Roe. Nearly three decades have passed since I took up the practice of law in a public interest setting, with the hope that, by doing so, I would help to bring about that internal correction by the Court. In that time, I have made many trips to the Supreme Court. I have served as counsel in hundreds of cases representing those that oppose abortion through peaceful demonstrations. In a handful of instances, I represented younger women seeking protection from abortions being forced on them by parents. I also litigated against State and local criminal laws restricting free speech near abortion facilities, adopted by legislative bodies that treated abortion as though it were a holy sacrament. If the Court ever reverses course in this matter on its own, it will come as a great surprise to this no man who is no longer misguided by dreams.

Or, of course, the other answer could come from Congress, the States and the People. We could amend the Constitution in a manner that effectively overturns Roe. That effect was exactly the one gotten for African slaves by the Fourteenth Amendment: reversal of a holding of the Supreme Court that had installed that Court's wrong-headed interpretation of the language in the Constitution as the language of the Constitution. In Dred Scott, the Supreme Court said, "no," blacks are not citizens, and could never be citizens. A half million lost lives and nearly 80 billion dollars (present day value) of treasure later, the Nation bent the Supreme Court over its collective lap and gave it Fourteen spankings. The lesson lasted about as long as it took for the questions of "separate but equal" accommodations for blacks, WWII internment of Japanese Americans, and abortion to come before the Court.

So the certain way, the sure way, to end legalized abortion would be to amend the Constitution to expressly extend legal personhood status to fetal children. Article V of the Constitution sets out two methods of amending the Constitution. Congress may initiate an amendment and send it to the States for ratification. In the alternative, the States may call on Congress to call a convention for proposing amendments to the Constitution. Congress could propose an amendment to the Constitution in terms of the proposed Act.

Availability of the amendment process has not produced any change in the Constitution, however, since the decision in Roe v. Wade. How many millions more fetal Americans must be sacrificed on the altar of Supreme arrogance and ignorance before the Court's error is repudiated in a constitutional amendment ending the horror of abortion?

Missteps or Next Steps: Is this Federal Statute the Answer

I won't defer to others on the following point:

I am unapologetically anti-abortion and unashamedly pro-life. Given the ability to do so, if, like Obama, I could play emperor, I would make abortion always a prohibited criminal act. By the way, just as in history, I could do so without the prospect of women being tried for participating in the abortions of their own children.

Now, of course, criminalizing abortion can be justified from a religious, particularly Christian, perspective. "Suffer the little ones to come unto me, and forbid them not," after all, is one of the more memorable and kindly counsels that event ardent atheists recognize as a teaching of the Savior. When Mary, recently having become pregnant, visited her cousin, Elizabeth, who was pregnant with John the Baptist, Elizabeth reported to Mary that when Mary spoke, the child leapt in her womb. In Aramaic, she used the word, "blephos." That word means "child" or "little one." Still, while it suffices for people of the Christian faith that Jesus took a most solicitous view of the value of children, that perspective would not suffice to justify such a restriction in an irreligious, or religiously pluralistic society. While it constitutes a valid reason to criminalize abortion, it is not, by itself a sufficient one.

Criminalizing abortion can be justified from concern for the life and health of women that resort to abortion. Abortion is a violent physical assault on a woman. There is, after all, an atmospheric about the decision by the Republican Leadership to have held this vote on the day it chose. Kermit Gosnell, a licensed medical doctor, is in prison because he killed a woman as part of providing her with a safe legal abortion; a jury also convicted Gosnell of three separate counts of first degree murder because, after three infants were born alive during abortions, he cut their spinal cords, killing them. Abortion disrupts a natural process. Often, particularly later abortions, involve even more dangerous assaults on the woman's body to accomplish the killing of her child. There is little doubt that abortion never helps women. But in a society where genuine concern for women is portrayed as shameless chauvinism, that concern would not suffice.

The better ground on which abortion should be criminalized pertains to the civil and human rights of the fetal child. That ground is, in its essence, indistinguishable from the ground on which this Nation ultimately rejected the legality of enslaving others. Remember, the American experience with the Peculiar Institution of Slavery depended in large part on a view that blacks were not persons in the same sense that whites were. That view is the one expressed by Thomas Jefferson in his Notes on Virginia. There he wrote, “I advance it as a suspicion only, that the blacks, whether originally a distinct race, or made distinct by time and circumstances, are inferior to the whites in the endowments both of body and mind."

In the same fashion, though by different terminology, abortion advocates have denigrated the separate and equal status of fetal humans as persons. They denigrate the personhood of fetal children in both biological and constitutional senses. As to the former, arguments for abortion that dispute the biological evidence for the fetal child's separate existence and identity have hung on long after the medical and biological evidence resolved those questions in favor of the humanness and separate existence of the fetal child.

Frankly, the persistence of that view as a matter of biology is decided in conflict with science, as testimony going back to the Senate's Hearings on S. 158, "The Human Life Bill," established. What remains then, is an argument derived from Roe v. Wade's judicial usurpations, that fetal children are not persons, at least not persons in a constitutional sense. That the Court necessarily rejected the personhood of the fetal child as part of deciding Roe v. Wade is no more dispositive there than was the Supreme Court's determination in Roe that blacks are not persons, but chattel goods.

Ultimately, as our national history showed, the one sure way to end slavery, the sure means of tattooing equality regardless of race or national origin on the skin of our governmental framework was to amend the Constitution. I have no remaining doubt that amending the Constitution is the only adequate and complete remedy to the current injustice of legalized abortion.

The House Concludes: Unborn Children Experience Pain

Why shouldn't Republicans in Congress welcome the opportunity to flush out the pro-abortion extremism of their House Democratic colleagues? That welcome effect of the debate and vote doesn't entirely explain the Pain-Capable Unborn Child Protection Act (“PCUCPA”). There is, more importantly, the deeply disconcerting knowledge that all that hacking, chopping, saline boiling, heart puncturing, and collapsing of craniums that abortionists do is being inflicted on fetuses that can and do experience pain, and, in fact, may experience pain more severely than do newborns and infants.

A review of the findings of fact contained in the Act confirms that the House acted because of its conclusion that facts existed on which it could make a judgment that abortions after 20 weeks gestation. Key findings of fact by the House include:
"(1) Pain receptors (nociceptors) are present throughout the unborn child's entire body and nerves link these receptors to the brain's thalamus and subcortical plate by no later than 20 weeks after fertilization.
(2) By 8 weeks after fertilization, the unborn child reacts to touch. After 20 weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling. 
(3) In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response. 
.... 
(11) Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, if not earlier."
The House made findings as part of the Act. Those findings, in turn, find substantial support in testimony from a source of apparent significant credibility. A decade ago, Congress enacted the Partial Birth Abortion Ban Act of 2003. Two constitutional challenges soon followed in federal courts. Those challenges, successful in trial courts, ultimately led to the Supreme Court's decision sustaining the constitutionality of the PBABA. At trial, the evidence offered supporting the PBABA included the testimony of  Dr. Kanwaljeet S. Anand, Regarding that testimony, the federal trial court in New York City said the following:
The Court finds that the testimony at trial and before Congress establishes that D&X is a gruesome, brutal, barbaric, and uncivilized medical procedure. Dr. Anand's testimony, which went unrebutted by Plaintiffs, is credible evidence that D&X abortions subject fetuses to severe pain. Notwithstanding this evidence, some of Plaintiffs' experts testified that fetal pain does not concern them, and that some do not convey to their patients that their fetuses may undergo severe pain during a D&X.
That the Court stated its finding thus is particularly significant because, despite finding that the evidence established "severe pain" being experienced by "fetuses," the Court still concluded that the PBABA violated the liberty interests of women in access to abortion procedures. Had the Court made that finding and struck down the statute, partisans might have accredited the decision to a bias on the part of the Court regarding the statute. There, however, the Court's bias -- if one existed -- favored the liberty interest in women over the power of Congress to restrict abortions using a procedure it acknowledged caused severe pain to fetuses.

The issue of pain in the fetus is not without a skin of controversy. In "A Systematic Multidisciplinary Review of the Evidence," published in the Journal of the American Medical Association, a lawyer and three doctors conducted a review of studies on pain in fetuses. The survey is accessible and fairly understandable. They conclude:
Because pain perception probably does not function before the third trimester, discussions of fetal pain for abortions performed before the end of the second trimester should be noncompulsory. Fetal anesthesia or analgesia should not be recommended or routinely offered for abortion because current experimental techniques provide unknown fetal benefit and may increase risks for the woman.
The survey gained some notice in media, probably because it was carried as an article in JAMA. What the authors of the article did not disclose to the editors of JAMA, however, was a record of pro-abortion activism that might reasonably be interpreted as influencing the selection of studies reviewed and reported by the article.

The National Right to Life Committee prepared a rebuttal to the study. You can find it here. A damning segment of the NRLC rebuttal connects the study's authors pro-abortion advocacy:
9. The lead author of the article, Susan J. Lee, who is now a medical student, was previously employed as a lawyer by NARAL, the pro-abortion political advocacy organization (Knight Ridder, August 24).
10. One of Lee's four co-authors, Dr. Eleanor A. Drey, is the director of the largest abortion clinic in San Francisco (San Francisco Chronicle, March 31, 2004, and Knight Ridder, August 24, 2005). According to Dr. Drey, the abortion facility that she runs performs about 600 abortions a year between the 20th and 23rd weeks of pregnancy (i.e., in the fifth and sixth months). (San Francisco Chronicle, March 31, 2004) Drey is a prominent critic of the Partial-Birth Abortion Ban Act, and a self-described activist. (In a laudatory profile in the newsletter of Physicians for Reproductive Choice and Health, September 2004, it was noted that "much of Dr. Drey's research centers on repeat and second-trimester procedures . . .," and quotes Drey as saying, "I am very lucky because I get to train residents and medical students, and I really do feel that it's a type of activism.") Drey is also on the staff of the Center for Reproductive Health Research and Policy (CRHRP) at the University of California, San Francisco -- a pro-abortion propaganda and training center. [] 
11. However, one reporter (Knight Ridder's Marie McCullough) did contact JAMA editor-in-chief Catherine D. DeAngelis regarding the ties of Lee and Drey. McCullough reported that DeAngelis "said she was unaware of this, and acknowledged it might create an appearance of bias that could hurt the journal's credibility. 'This is the first I've heard about it,' she said. 'We ask them to reveal any conflict of interest. I would have published' the disclosure if it had been made." (Knight Ridder, August 24, 2005) A day later, DeAngelis told USA Today that the affiliations of Drey and Lee "aren't relevant," but again said that the ties should have been disclosed. If she really thought the affiliations were not relevant, why would she say that they should have been disclosed? If a review of the same issue by doctors employed by pro-life advocacy groups had been submitted or published, would those affiliations have been ignored by journalists?  
12. Dr. David Grimes, a vice-president of Family Health International, has been relied on by CNN, the New York Times, and some other media as a purported expert to defend the paper. Dr. Grimes has made pro-abortion advocacy a central element of his career for decades. (During the time he worked for the CDC in the 1980s, his off-hours work at a local late-abortion facility sparked protests from some pro-life activists.  In 1987, a year after he left the CDC, Grimes testified that he had already performed more than 10,000 abortions, 10 to 20 percent of those after the first trimester.) In addition, Grimes was previously the chief of the Department of Obstetrics, Gynecology and Reproductive Sciences at the San Francisco General Hospital -- the very same institution where author Drey directs the abortion clinic.
Still, these criticisms, while revealing of researcher bias, tend toward ad hominem and do not, by themselves, resolve the questions of fetal pain.

Dr. Anand's testimony serves as a clear, highly experienced, and expert source on the question of fetal pain. In his corner, among other voices, there is the British Journal of Obstetrics and Gynaecology. In a 1999 issue of BJOG, another review on fetal pain concluded as follows:
The assessment of whether or when the fetus is likely to feel pain has to be based on an evaluation of the available anatomical and physiological evidence. The physical system for nociception is present and functional by 26 weeks and it seems likely that the fetus is capable of feeling pain from this stage. The first neurones to link the cortex with the rest of the brain are monoamine pathways, and reach the cortex from about 16 weeks of gestation. Their activation could be associated with unpleasant conscious experience, even if not pain. Thalamic fibres first penetrate the subplate zone at about 17 weeks of gestation, and the cortex at 20 weeks. These anatomical and physiological considerations are important, not only because of immediate suffering, but also because of possible long term adverse effects of this early experience.
The technical summary led to the following pithy and, honestly, piteous appeal:
The eighteenth century philosopher, Jeremy Bentham, wrote of animals The question is not Can they reason?, not Can they talk?, but Can they suffer?. This caused a change in attitude towards animals and their treatment that is continuing to day, such that in the UK, even frogs and fishes are required by Act of Parliament to be protected by anaesthesia from possible suffering due to invasive procedures. Why not human beings?
Indeed, why not human beings?

Perhaps not human beings because, among the feral lot of us, there are so many Obamas, so many Wasserman Schultzes, panderers to the lowest urges, who recognize no point in time when a child is too like us to accept the unrestrained brutality of abortion, when a method is too barbaric to tolerate its application as the solution to the problem. Obama's take on abortion is found in his remarks on the 38th anniversary of the Supreme Court's decision in Roe v. Wade:
Today marks the 38th anniversary of Roe v. Wade, the Supreme Court decision that protects women's health and reproductive freedom, and affirms a fundamental principle: that government should not intrude on private family matters. I am committed to protecting this constitutional right.
Wasserman Schultz, no doubt, has an answer to the question why not protect fetal Americans from possible suffering due to abortion procedures. For Wasserman Schultz and her cohorts, the only justifiable restriction on abortion is found in the subjective judgments of abortion-bound women. Any federal statutory imposition might be taken as an expression of distrust of women's judgments about such matters, and that, in Wasserman Schultz's schema is the unpardonable sin.

Naked Political Ploy to Expose Abortion Extremism?

The House vote on the Pain Capable Unborn Child Protection Act is a welcome turn of events. The House held its vote on the anniversary of the murder convictions of abortionist Dr. Kermit Gosnell, MD. By holding its vote on that anniversary, the House powerfully reminds us that abortion is a nasty, often unregulated, and unseemly practice.

Gosnell's little shop of horrors was a terrible place to be killed. And what a dreadful way to go, dying in the act of having your own offspring killed. By using the anniversary date of Gosnell's conviction, the connection to poor outcomes for women and children in abortion has been deliberately drawn by the House.

Of course, at some point, the allegations will be thrown about that the House vote simply served political purposes. In other words, those accusing the House Leadership of engaging in political theater will be accusing the Speaker of the House and the Majority Leader of an unseemly and cynical act. In that view, Boehner & Co. held the vote simply as preparation for 2016 Congressional elections. For the cynics, the vote simply presented an the opportunity to spear those Representatives – predictably Democrats – that would vote against even such a late term abortion restriction offered on such a humanitarian ground as that of the capacity of the fetus to feel the pain of her own demise.

And perhaps there are such machinations afoot; perhaps Republicans in the House are flushing out those elected Representatives so firmly committed to legalized abortion that no restriction – not as to the method of abortion, not as to the lateness of term in pregnancy at which the restriction would take effect – none whatever can be permissibly imposed on the right.

The leadership of the Democratic Party does nothing to avoid the perception that, for Democrats, there's no such thing as a permissible restriction on abortion. Just recently, Democratic National Committee Chair Debbie Wasserman Schultz, had the opportunity to identify a point in pregnancy, late in pregnancy, or a size of fetus, such as one weighing 7 pounds, at which point Democrats would support legislative restrictions on abortion. Wasserman Schultz, a good storm trooper for the abortion industry, responded:
"I can't tell you a specific date and time past which we on all – in all cases are certain that that choice shouldn't be made because that decision is very unique and individual to the woman, and should be in consultation with her conscience and her god and her doctor, that is a decision left to her."
Given the role played by the President, as leader of his party, in selecting the Chair of the Democratic National Committee, either the President shares Wasserman Schultz's extremism on abortion, believing that no restrictions may be permissibly imposed on abortion, or the President should take Ms. Wasserman Schultz to the woodshed for failing, in such an evident and public way, to state a defensible and articulate point in time, acceptable to Americans, when abortions can permissibly be proscribed.

We all know, or should know, however, that Wasserman Schultz will not be taken to the woodshed by Obama. Obama is the best friend the abortion industry has in American government. Going back to his time in the Illinois Senate, when he voted "present" on a panoply of initiatives, proposals, and ideas in the form of bills and resolutions, one instance in which the future President would be reliably voting his heart was on consideration of abortion-related legislation. 

His forte, it turns out, was to resist Illinois bills that would impose on doctors a duty to provide care to children born alive after an abortion. Notice that these were not bills that would have prohibited abortion. Nor were these bills that would have required abortion businesses to be subject to the same health and safety standards as other medical clinics. No, these were just rules that would, if adopted, tell the Dr. Gosnells of Illinois that if, following an abortion, a child was born alive, the doctor would be obliged to provide medical care to preserve the child's life. Not once, not twice, but three times, Obama took the lonely vigil stand against the imposition of such a duty by law.

The House Acts to Save a Small Number of Fetal Humans

The House of Representatives recently held a vote on the persistent and contentious abortion issue. At issue was a piece of legislation known as the Pain-Capable Unborn Child Protection Act (“PCUCPA”) of 2015. If the bill passed by the House were to become law, it would prohibit abortions after 20 weeks gestation in almost all cases. The House finally got around to holding the vote after a stumble on the issue back at the start of the new Congress, in January.

The bill rests on the House’s factual conclusion that fetal humans – as a matter of their biology, their physiological development, not only respond to sensation, but experience sensation as pain. The medical community continues to debate the exact point in time when sensation becomes pain. The House, relying on its investigation of the science, concluded that by twenty weeks gestation, the fetal human experiences pain. Based on that conclusion, with the exception of certain pregnancies (rape, incest, life of the mother endangered), the House approved an Act that prohibits all abortions after twenty weeks gestation.

Of course, “many's the slip betwixt cup and lip.”

First, substantial doubt exists that the Senate would pass the bill.

To do so, the Republican Leadership would have to have the stomach for a legislative engagement on principles key to the base of the Republican Party base. Thus far, there is no evidence that McConnell & Co. possess the will to do so. Even if the Republican Senate Leadership considered the bill, before it could be brought for a vote, any filibuster by Democrats or the left-side Republicans would have to be overcome. Again, the fix for a filibuster is simple, as Democratic Leader Harry Reid showed when, as Senate Leader, he accomplished the destruction of the filibuster as a tool to prevent votes on judicial nominees of Barack Obama. But we can engage in infantile fantasies and pretend that McConnell might have a testicular transplant from Reid, end legislative filibusters and bring the PCUCPA to a vote, doubt still would persist that a majority of the Senate could be garnered to pass the bill.

Second, even if Congress approved the bill and sent it to the President for signature, no doubt exists that Barack Obama would veto the bill. Obama’s record of support for unrestricted abortion is clear, going back to his service in the Illinois Senate where he fought to prevent that body from adopting a law that would have imposed on doctors a duty to provide care to children born alive following a failed abortion. His now-famous blessing of Planned Parenthood while President, his admission that he views pregnancies as mistakes and that he would not want his daughters to be punished by being compelled to carry an accidental pregnancy to term, these things all make the Oval Office obstacle clear and certain.

Following House passage, the foregoing reality, that the PCUCPA has little likelihood of ever passing the Senate, and no likelihood of avoiding a presidential veto, did not keep the Chicken Little Squad of the Abortion Party on the sidelines. Rather, as predictable as ever, they sprang into full hysteria mode:


Their hysterics belie the certainty known to each of these panic-peddlers: the PCUCPA will never become law, not while the Senate's Republican majority is so slim.

Mind you, Republicans hold a governing majority in the Senate. Yet, the Republicans continue to enforce the Senate Rule on Cloture, and the historical practice of the filibuster. They adhere to the historical practice of the filibuster despite the precedent set by Senate Democrats when they held the majority. Then, impatience over judicial holds and the pace of confirmation votes by the Senate led Senate Majority Leader to abandon the Senate's historical practice of the filibuster in the cases of consideration of executive and judicial nominations.

Now, the Republicans have the Senate, and Mitch McConnell has the Republicans. But McConnell continues obeying the tattered, torn and Harry Reid-scorned Filibuster and Cloture Rule. Even if the Senate Republican Leadership ends the filibuster and brings the Act to a vote, even if the Senate passes the House’s bill, it would not become law. Barack Obama is president, and he is, by record, the most pro-abortion president in our history.

Still, panic-peddling works has its value. It demonstrates the peddlers' commitment to a core progressive issue, and it serves the fund-raising purposes of abortion partisan groups.

Wednesday, May 27, 2015

If We Don't Hear Their Cry, Do They Feel Pain When They Die?

Do fetal humans feel pain, as the House by a majority concluded they do?

I suppose the question makes sense. 
One might as easily ask, do Jews feel pain? After all, did you hear the scratching sounds that had to accompany the making of these marks:


The Problem of Pain: Does Anyone Care Whether Fetal Humans Experience the Pain of Their Extermination?

From time to time, a matter of gravity requires fuller treatment than Twitter allows, requires more thought than brief and witty posts permit.

I've been thinking about the recent passage by the United States House of Representatives of House Bill 1719, The Pain Capable Unborn Child Protection Act of 2015. The Act prohibits most abortions that occur after 20 weeks gestation, and does so because of the conclusion expressed in the bill that fetal children not only experience "sensation" but feel pain. I think the case for prohibiting abortion stands without reference to the experience of pain, based on the indisputable human condition of fetal children. Yet, who can doubt that most, if not all, will find a particular cruelty in the savagery of late term abortions inflicted without consideration of the experience of pain in dying?

So I have spent some time considering HB 1719, and written what my good friend Lou called a "mega-blog."

Because this particular posting is extensive, I've broken it down into digestible portions. While the blog made sense as an assembled whole, it did require a certain level of commitment to complete it. In parts, the segments each present a set of complete considerations relevant to the whole. I hope that you find it of value.

Here are links to the separate posts. I offer them in what seems to me to be the correct rhetorical order:

The House Acts to Save a Small Number of Fetal Humans. This post introduces the disputed bill and reports on its passage. It also notes the panic peddling of abortion hawkers amongst the Democratic Party and leadership.

Naked Political Ploy to Expose Abortion Extremism? In politics, the accusation is frequently made that some bill or another was only offered cynically, for some purpose unrelated to the topic of the bill. Was the Pain-Capable Unborn Child Protection Act a naked political ploy? Or are those who refuse even the most meager measures the naked ones?

The House Concludes: Unborn Children Experience Pain Here, we get to the heart of the matter. Fetal humans are biologically alive. Medical treatment of fetal humans, and physiological research on human development shows that at least by the end of the 20th week gestation, an unborn child not only experiences sensation, but that sensation can be experienced as pain. Not that the evidence is undisputed, but the evidence is there, and just how does humanity ignore inhumanity?

Missteps or Next Steps:  Is this Federal Statute the Answer Abortion has been a prohibited, criminal act for many times longer than its present status as a blessed legal sacrament of American progressivism. With the certainty that the late term fetal human is forced to endure the pain of her own death, is the Pain Capable Unborn Child Protection Act the answer?

"Personhood," That is, Status as a Person in the Sense that "Person" is Used in the Constitution, Should be Resolved by the Constitution Our history as a people should teach us this: the surest bulwark against government denial of human personhood is to enshrine the status of fetal humans in the Constitution by Amendment. The history shows the way.

Lesser Solution: Well-meant Window Dressing? Finally, there are real problems with the proposal, particular for those that would hold fidelity to a written, fixed in meaning, Constitution. Just because we can get away with a naked grab of power in the Legislative Branch does not justify doing so. We don't fix things by breaking things more.

Thursday, May 21, 2015

HRod17@ClintonEmail.com: The Arrogance of Presumption

HRod17@ClintonEmail.com.

Yes, as it turns out, Hillary Rodham has presidential aspirations.

In fact, we've known that she has the aspiration for years. We watched her pursue (sometimes with the "help" of Rush Limbaugh) the right to seek the office of the President as the candidate of the Democratic Party back in 2007-08, only to fall as the last remaining alternative to Barack Obama. We knew that her pursuit of the Senate, and her acceptance of the State Department appointment, were in furtherance of her intention to pursue the Presidency.

So really, who could be surprised?

Yet there is a certain presumption in an email address that is at least 3 or 4 years old, such as HRod17@gmail.com. HRod17? No fooling around here folks, she's made the claim for the office and set the target, and she has been emailing with some group of friends and correspondence during this entire period with the presidential aspiration plainly stated via the very email address she created.

Tuesday, May 19, 2015

Sure, Hillary Has Resigned from Office ... But The Government Says She Can Still Be Impeached

Well, well, well, hadn't thought about this possibility.
Impeaching Hillary Clinton would weigh her down in the defense of apparently indefensible wrongs against the public interest in security of government communications, the public interest in maintenance of records of the government, the public interest in disclosure of records subject to production and disclosure.

Monday, May 18, 2015

A Treatise on Law is Not Law

"He that would beat a dog can easily find a stick."
Folk Proverb

"To a man who has only a hammer, everything is a nail."
Abraham Maslow

I am more than a bit taken aback by the vehemence with which Vattel devotees command a slavish devotion to Vattel's observations about the nature of citizenship, and, in particular, his articulation of the legal principle -- jus sanguinus -- under which one's fealty to a nation is derived from one's parents (thus, "sanguinus" or blood). There are dozens of websites that discuss the Presidential Eligibility Clause requirement that one must be a "natural born citizen" and invoke Vattel's Law of Nations to conclusively determine that only those persons born in the United States and to parents who were themselves natural born citizens fit the natural born citizenship requirement.

There are a panoply of arguments that fully answer the Vattelists.

Still, as they are intent on beating candidates such as Marco Rubio and Bobby Jindal, who are, under the jus soli approach to eligibility, fully eligible to be elected President, and they easily find the Vattelic stick. But that stick is not suited to the task, any more than a hammer is suited to the task of removing lug nuts, still, to those who have only a hammer (or Vattel's Law of Nations) everything is a nail (or a good time to invoke jus sanguinus).

It perplexes me. The invocation of Vattel does seem quite selective. Vattel wrote a treatise on the Law of Nations. In his treatise, he begins with the beginning of the topic of nations and he lays out in meticulous detail hundreds and hundreds legal considerations relevant to the creation and maintenance of States. Yet, out of all that Vattel writes of the Law of Nations, only jus sanguinus is invoked.

What do I mean?

Well, for example, in the Law of Nations, Vattel also discusses the wisdom of establishing public granaries. I'm including that section of his treatise below. He provides general principles of operation of such granaries that are, to say the least, inconsistent with the American preference for free market economies and individual choice in the use and disposition of one's property and labor:
§ 82. Of public granaries.
The establishment of public granaries is an excellent regulation for preventing scarcity. But great care should be taken to prevent their being managed with a mercantile spirit, and with views of profit. This would be establishing a monopoly, which would not be the less unlawful for its being carried on by the magistrate. These granaries should be filled in times of the greatest plenty, and take off the corn that would lie on the husbandman's hands, or be carried in too great quantities to foreign countries: they should be opened when corn is dear, and keep it at a reasonable price. If in a time of plenty they prevent that necessary commodity from easily falling to a very low price, this inconvenience is more than compensated by the relief they afford in times of dearth: or rather, it is no inconvenience at all; for, when corn is sold extremely cheap, the manufacturer, in order to obtain a preference, is tempted to undersell his neighbours, by offering his goods at a price which he is afterwards obliged to raise (and this produces great disorders in commerce, by putting it out of its course); or he accustoms himself to an easy life, which he cannot support in harder times. It would be of advantage to manufactures and to commerce to have the subsistence of workmen regularly kept at a moderate and nearly equal price. In short, public granaries keep in the state quantities of corn that would be sent abroad at too cheap a rate, and must be purchased again, and brought back at a very great expense after a bad harvest, which is a real loss to the nation. These establishments, however, do not hinder the corn trade. If the country, one year with another, produces more than is sufficient for the support of her inhabitants, the superfluity will still be sent abroad: but it will be sent at a higher and fairer price.
Of course, Vattelists may wish to assert that the discussion of public granaries is merely an observation of the value to be found in the operation of such an enterprise, and is not a mandatory feature of the nation.

To which I will reply, "well, yes, precisely!" For it is in the nature of a treatise that it is a thorough and careful, complete discussion of a subject. In the case of Vattel's Law of Nations, his is a treatise that treats in detail and with care the broad topic captured in its title. But the law of nations is not, nor has it ever pretended to be THE LAW OF NATIONS. Instead, it is a thorough, expository, examination of its subject.

So, again, NO, we are not bound to Vattel. We are not bound to his preference for jus sanguinus over jus soli. Happily, we can be informed of a principle without having to conform to the principle, else we must begin to build the AmGranaries, the physical facilities of the National Granary Corporation.



Sunday, May 17, 2015

Bureaucracy: The World Ends, Not in Fire or Ice, but in Mire and Muck

In ratifying the Constitution, the States set up three governmental units that make up the federal government: The Legislative Branch, The Executive Branch, and the Judicial Branch. In terms, the Constitution strictly limits the nature and kinds of authority delegated to each branch:
-- All legislative power donated by the States to create the federal government is deposited in the Legislative Branch.
 -- All executive power donated by the States to create the federal government is deposited in the Executive Branch.
 -- All judicial power donated by the States to create the federal government is deposited in the Judicial Branch.
The Legislative Branch and the Executive Branch are often described as the "political branches." That classification reflects the fact that positions held within the branch are subject to election. The judicial branch offices are only political in a derivative sense, in that those that hold judicial office are appointed by, and confirmed by, those that are elected.

Now, there is a fiction that allows this extra-constitutional legislative imposition by regulation. The Supreme Court has opined in its cases that there is a small space of delegation permitted under the Constitution (although no clause of the Constitution expressly so states). Oddly, that space allowing administrative regulations has resulted in the creation of some 200 volumes of permanent regulations. But, under that view, the Congress delegates some legislative power to the Executive Branch to make particular regulations within a statutory framework.

The deep penetration of the federal government into the daily lives of Americans does not, actually, take place directly at the hands of Congressmen, Senators, Presidents, or Judges. Rather, the intruding hand of the federal government in the typical American's life is that of a bureaucrat. Not elected, not responsive politically to the will of the people, the bureaucrat is the faceless, nameless, stone upon which the American nose is ground down.

Now, typically, those bureaucrats are not even directly enforcing STATUTE laws enacted by Congress. Instead, they are enforcing REGULATIONS adopted by administrative agencies that are part of the Executive Branch. But the Constitution gives ZERO Legislative (that is, law making) power to the Executive Branch.

So you see, your tax filings that must comply with IRS rules and regulations, your park use applications that must comply with National Park Service regulations, your new drug application that must comply with FDA rules and regulations, ALL THESE, and AND ALL OTHER FEDERAL REGULATIONS that importune you, deprive you of liberty, constrain choices, impose costs, reduce effectiveness, they have not been imposed on you and me in the manner contemplated by the Constitution. 

In a recent case involving Amtrak imposition of regulations on other rail carriers -- a power to regulate that Amtrak got from Congress when Congress created the National Railway Passenger Corporation (Amtrak's true name) -- Justice Clarence Thomas expressed concerns about the problem of the regulatory state under our Constitution's separation of powers. 
Congress has permitted a corporation subject only to limited control by the President to create legally binding rules. These rules give content to private railroads’ statutory duty to share their private infrastructure with Amtrak. This arrangement raises serious constitutional questions to which the majority’s holding that Amtrak is a governmental entity is all but a non sequitur. These concerns merit close consideration by the courts below and by this Court if the case reaches us again. We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects. 
Among the consequences of such a construction, as Justice Thomas notes, Congress may forego its responsibilities with respect to making laws, expanding the nature and scope of executive power, while, at the same time, because of its own indolence in strenuously examining such regulatory actions.

These are "known knowns." The question for you is, does your Constitution do this? Or is that the false Constitution of usurpers of the public will?