The ABC/Washington Post Poll of People Not Likely to Vote

Noto Bene: The duty of candor requires that I mention that the October 23, 2016, poll included 874 LIKELY voters. But it also included 517 NOT LIKELY TO VOTE participants.

Here's another example of using oversampling to steer the outcome of a poll.

ABC News Washington Post Tracking Poll today is being reported to show that Clinton has opened a 12 point lead over Trump. Fascinating stuff. Odd, too, considering that less than two weeks ago, a similar poll reported by ABC/WaPo showed Clinton leading by 6 points.

Let's call today's poll the "new poll" and the other poll the "old poll."

The old poll was conducted by interviewing fewer than 800 "LIKELY VOTERS."

The new poll was conducted by interviewing just over 1300 subjects, of whom 874 were LIKELY VOTERS.

The results of the new poll, however, are not the results of just those 874 likely voters. That poll interviewed 1391 people. Nearly 500 people were interviewed and their responses included in the results of the poll despite the fact that they were NOT LIKELY TO VOTE.

Say What?

Yes.

The total result of the poll included 874 folks that are likely to vote and FIVE HUNDRED SEVENTEEN respondents who ARE NOT LIKELY TO VOTE.

NOT LIKELY TO VOTE.

Think about the meaning of that phrase and how it connects to the matter with which we tend to ASSUME news organizational polling is concerned. Maybe that is the place to start.

Why do you look at news reports of polling?

Is it a search for confirmation? Sort of an internal dialog, "See, the majority of folks agree with me" kind of thing?

Is it an effort to see into the future? Sort of a "Well, let's see how this is going to turn out? kind of thing?

I think these are two of the most common responses to expect when you get honest responses from folks as to why they are interested in such polls.

But suppose what you are looking for in polling is not what campaigns and/or news agencies are seeking?

You realize that "push polling" exists. Those polls that, rather than gauging the temper of the people seek to put fire under them or dump cold water on them.

Let's not jump to any conclusions yet. But, suppose a polling agency and its partners wanted to steer the outcome of a poll. If they did, which approach do you think might be more effective. I'll give you two choices.

Choice A.

After confirming that the interview subject fits poll requirements (likely voter or not; party affiliation or not; racial and cultural demographic or not), ask one question:

"In a two way race between Hillary Clinton or Donald Trump, for whom would you vote?"

Choice B.

Again, after confirming that the interview subject fits poll requirements (likely voter or not; party affiliation or not; racial and cultural demographic or not), ask three questions:

"First, Donald Trump says the election may be rigged through election fraud. Do you think he is expressing a legitimate concern or that he is making excuses for a possible unfavorable outcome?"

"Second, Donald Trump refuses to say if he will accept the outcome of the election. Do you approve or disapprove of his remark?"

"Third, In a two way race between Hillary Clinton or Donald Trump, for whom would you vote?"

Now, you make your own judgment. But for me, asking a couple of good ground penetrating bomb blast questions might just be the kind of thing that deforms outcomes that might otherwise be gotten by simply asking for whom the likely voter is likely to vote.

But Choice A above is not what Langer Associates did in its polling for ABC News and the Washington Post. Instead, it took Choice B, peppering participants with those questions.

The ABC/WaPo poll also engaged in modeling. This approach looks at some past election, determines participation percentages by party and then skews its sampling according to those numbers.

Here, the Langer agency skewed its sample. Here's how they described their skew: "Partisan divisions are 36-27-31 percent, Democrats-Republicans-independents." In other words, the agency set itself a quota task: 36% of those interviewed must be Democrats, 27% must be Republicans, 31% must be Independents. These kinds of partisan divisions are included in most polls. The exact percentages change. For example, why 36-27-31 when the Pew Center says that, currently, the breakdown in partisanship is 33-29-34?

You can see, I'm sure, then, that the specific, formulaic breakdown used in selecting polling participants can skew the numbers, and it becomes important, if polls are something you have to deal with or choose to deal with, to KNOW what the pollster is using for partisan division, and to know WHY they are using any particular spread.

I'm going to wrap here by returning to that 517 number.

Remember, this poll was one conducted by interviewing 517 people, according to the polling methodology, who were not likely to vote and 874 who were likely to vote. I've read the poll. I've read the research methodology. No other information appears on the polling agency's page to explain who those 517 folks were (I mean demographically, rather than personal identity) or WHY their responses are a part of the survey.

The questions not answered in the survey or its methodology include whether, and to what extent, the inclusion of those NOT LIKELY TO VOTE in the survey, skewed the outcome. But given the substantial shift from ABC/WaPo's survey of two weeks ago, which was of LIKELY VOTERS ONLY, it seems reasonable to ask about that group, and in the absence of a forthright explanation, it seems reasonable to conclude that was the purpose of the group’s inclusion in the poll.

Honest Letter from the Candidate?

Well, that's hardly to be expected. Honesty about the chances of winning the nomination through the primary and caucus process would have driven our Canadian contender, Ted Cruz, and our Buckeye battler, John Kasich, out of the race no later than the conclusion of the New York primary race (though the Buckeye wilted months ago).

Now our own slice of Canadian bacon and our favorite postal scion appear to be in the process of trying to deny to Donald Trump the necessary delegates to do what -- at this stage in the contest -- only he has any prospect of doing:  reaching the magical delegate count of 1237. 1237 delegates voting for Trump in the first round of the balloting at the Republican Convention this summer would result in his nomination.

So Cruz and Kasich have connived to frustrate that march to success. In States where Cruz is running far behind, he appears to have agreed to expend no additional resources in the primary campaign; Kasich has agreed to do likewise. [The nature of this agreement does appear to be tenuous; Kasich has already clarified that, while he will not make devote further resources in certain States, he is not asking his supporters in those States to give their vote to Cruz.]

So, there really is only one explanation for the continuation of active campaigning by Cruz or Kasich. If they were honest, here's the letter their campaigns would release:

My Fellow Americans, 

I come to you today to explain my decision to put my name in for consideration for nomination by the Republican Party for the 2016 Presidential Election.

Now, I am a practical man. 

As a practical man, I recognize that I have FAILED to convince the majority of you to support my candidacy. In fact, I have failed to convince a majority of the members of my own party to support my candidacy. That FAILURE is reflected in my accumulated delegate count and in the abysmal victory record I have thus far accumulated. 

As a practical man, I know that I cannot win the Republican nomination on the first ballot at the Convention this summer. 

At this point, some of you may wonder, "why does he remain in the race?" 

I can tell you this much. 

My continued presence in the race is not at all impractical. I am practical man. So, my practical reason for remaining in the race is to insure that the only candidate for the Republican nomination that has a mathematical possibility of gaining the nomination on the first round of convention balloting is denied that show of unity and support.  

As a practical man, I take this step because I believe the nation would be better off with either an outright communist, Bernie Sanders, or a lying socialist, Hillary Clinton, as our President, than a successful businessman.  

In the same vein, I have joined forces with my other primary opponent to attempt to prevent Donald Trump from winning such States as New Mexico and Indiana. We have agreed to withdraw our resources from States where the other has the best chance of denying delegates to Trump.  

Warm Regards,  

Ted Cruz/John Kasich"

Even the possibility of a Clinton presidency is obscene. 

Clinton is that kind of liar whose trustworthiness lead folks to know that she is lying because her lips are moving. On matters small -- how close incoming fire may have come to her and Chelsea during their Bosnia visit years ago -- and on matters large -- whether the Benghazi rampage was believed by her or the administration she represented to be a spontaneous demonstration gone awry -- Clinton's demonstrated dishonesty is pathological. 

Yet, the best possible explanation for the conduct of Cruz and Kasich is pride. That is, really, the best explanation. These are the losers that refuse to go home. 

Imagine the Jamaican bobsled team mounting the gold medal stand at the Winter Olympics in Calgary so many years ago. True, that team won its way into the hearts of millions ... but it never won its way on the four man winner's stand. Insisting on the right to be awarded what you have not won is not merely gauche, it is a defect of character. 

Here, that defect of character puts me in mind of the after-revealed fact that Mitt Romney sought the Republican nomination in 2012 because he believed himself to be the only qualified person to seek the office. Oh? Really? And now we realize that Cruz, whose high school boast was to one day rule the world, and Kasich honestly believe we cannot possibly understand that only they, and certainly not Trump, are qualified to be president.

Perhaps the coming further humiliations will tame their pridefulness. Perhaps repentance will come while a Republican general election victory is still possible. Perhaps, like the Ghost of Christmas Present, Ronald Reagan will appear to these two dim souls and take them walkabout in a Nation that is weary of insider dealing and insider trading.

I will not hold my breath.

How Hard Will Cruz Fight to Keep This Document Secret?

The image above is the top portion of page 1 of the official form required by the Canadian government for any person seeking to renounce their Canadian citizenship.

Did you ever think you might have an American President that actually had to file this form, in order to assuage the concerns of his fellow Americans about his lifelong dual citizenship?

Yet here we are, in 2016, facing the prospect, slim but real, that the Republican Party would put an expatriate Canadian on the top of their November ticket.

Given that circumstance, you would think there might be some curiosity about the contents of Ted Cruz's Application to Rounce Canadian Citizenship.  After all, there has been no end of curiosity about the contents of other candidates' personal files, as a principal example, the incessant cry for the tax returns of Donald Trump (returns that Ted Cruz insinuated might show Trump had dealing with "the mob"). Yet, here we are 3/5ths of the way through the primary process and there is yet NO HUE and CRY, "Give us the Application!"

It isn't as though it would be difficult to produce.

Ted's an attorney. He undoubtedly maintained a copy of the document he submitted.

And, it is something of a curiosity, sure, but it is more than just a curiosity. Remember, one must be a natural born citizen of the United States to be eligible to be president. Canada, on the other hand, requires one that renounces Canadian citizenship to prove that they have citizenship elsewhere (avoiding persons becoming stateless as a consequence of granting such an application).

Seeing Ted's form would provide us with important information and insights.




















Notice, for example, Question 5A requires affirmation of citizenship elsewhere than Canada, and that proof of such citizenship be attached to the application. Question 5B requires that the applicant state the reason for renunciation. Given that Ted Cruz's mom's name appears on a list of potential Canadian voters, there is some possibility that she actively surrendered her US citizenship before Ted was born, or that she chose not to register his birth with the US Consulate at the time.

Getting an eyeball on Ted's proof of citizenship here just might prove interesting.

Perhaps his mom did file a consular report of birth abroad, perhaps not. Just as interesting would be the discovery of Ted's proffered reasons for renouncing his "natural born" Canadian citizenship. What might Ted have said? Perhaps, "I want to run for President, and your confused American cousins might not understand that I can be a 'natural born' citizen of two nations at the same time"? Or, maybe, "Hey guys, this is embarrassing, I've already been elected to the US Senate and never even thought about my dual citizenship and how it might sit with the YAhoos down here in Texas"?

Page two of the renunciation application has some good questions on it. Question 6 inquires about current address inside or outside Canada. It requires PROOF of residence outside Canada too. Doesn't seem like terribly private and personal information, the kind that Ted would need to hide. In fact, Question 6 is the kind of question he's probably had to answer a bunch of times, for things like tax returns, job applications, driver's licenses, etc.

Of course, pesky Question 7, seeking details regarding his birth might fester a bit in Ted's mind. Why, you ask. Simply because Question 7, properly answered, would remind everyone that Ted calls Calgary home, and Canada is the country of his origin. It's a craw sticker, really. Every time he gets past the concern that we might be frying Canadian bacon in the White House, someone offers him a Molson or cracks a Calgary stampede joke.

Now page 4, this one is a puzzler for a guy like Ted. It ought to be straight forward. Just list your parents, their countries of origin, and a few minor marital details. But again, the completed Ted Cruz renunciation would serve as a reminder that Ted's dad was, in all likelihood, a citizen of Cuba at the time of Ted's birth. And that really stinks up the citizenship works. Because, as it turns out, Ted was claimed by THREE NATIONS at birth:

• Cuban law asserts that children born to Cubans abroad are citizens of Cuba, and of no other Nation
• Canadian law asserts that all children born in Canada are citizens of Canada
• US law grants naturalized citizenship at birth to children born abroad to Americans

So, Ted's assertion that he is a "natural born citizen" is certainly true. He's a natural born citizen of Canada, by Canadian law. And he is a natural born citizen of Cuba by Cuban law. The assertion that he is a natural born citizen of the United States, however, is unsupported by law or fact.

The last page of the renunciation application is a document checklist. It has to be filed with the application and it lists documents required to be filed with the application. So, in Ted's case, he would have had to provide a certified copy of his birth certificate.

Fortunately for Ted, that seems to have been an easy task. His birth certificate even showed up in the newspapers:

Still there are those other troublesome document requests:

• certified copy of proof of citizenship of a country other than canada
• certified copy of proof of residence outside canada
• certified copies of two additional pieces of personal ID, including at least one photo ID

Now, to prove up his citizenship elsewhere, what might Ted offer?

Well, if you ask the United States Citizenship and Immigration Service, the answer would be:

The most common documents that establish U.S. citizenship are: 

• Birth Certificate, issued by a U.S. State (if the person was born in the United States), or by the U.S. Department of State (if the person was born abroad to U.S. citizen parents who registered the child’s birth and U.S. citizenship with the U.S. Embassy or consulate); 

• U.S. Passport, issued by the U.S. Department of State; 

• Certificate of Citizenship, issued to a person born outside the United States who derived or acquired U.S. citizenship through a U.S. citizen parent; or 

• Naturalization Certificate, issued to a person who became a U.S. citizen after 18 years of age through the naturalization process.

Of course, Ted admits his Canadian birth, so there won't be a birth certificate forthcoming from a US State. But perhaps Ted's parents registered his birth with a consulate in Canada? If so, producing a copy of that consular report and a certificate of citizenship should present no logistical problem, although the discomfort factor accompanying yet another reminder of his foreign birth may trouble him, and lead to a decision to decline to produce the Application for Renunciation of Citizenship.

Ted won't likely be president of the United States. But he has gotten near enough that it is time for the public to insist that he fully disclose the process by which he abandoned his natural born Canadian citizenship. Clear the air, Ted, produce your Application to Renounce Canadian Citizenship and the supporting documents you filed with the application.

Betwixt the Mirage and Hades: Does Voting Matter

“What difference, at this point, does it make?”

We will elect a new president, a new Congress, and many state and local government officers in less than 10 months. Having actively participated in the political life of our Nation through voting and advocacy for four decades, I am growing less and less sanguine about the prospect that political participation suffices to accomplish positive change.

Frankly, I am strongly tempted, particularly whenever the Republican Congress recedes from the field of battle with the current president as though it were the ninety pound weakling, rather than the other way around, I have that refrain constantly in my head: “What difference, at this point, does it make?”

Among my anarchist friends, the entire electoral enterprise is an exercise in self-delusion and oppression. It is an exercise in self-delusion, as they see it, because the outcome of the process makes no improvement. Oppression, because, after all, why should the choices of some collective group strip those outside the group of rights and liberties.

That latter point explains the near anarchy of many libertarians. My libertarian friends view the binary nature of American electoral processes as a deceptive construct of left-vs-right, deceptive because it ignores the more substantive binary of individual liberty versus statist authority.

For conscientious individuals, elections certainly force larger questions than whether to vote for the candidate who sweats less on camera or the candidate that doesn’t recall or even know the name of the head of the government of Uzbekistan. I have to continually evaluate what 40 years of civic participation has accomplished. Candidly, I am often tempted to conclude that I have pursued a mirage in the Republican Party.

The idea of supporting Democratic Party candidates is beyond admission: that party’s devotion to the unfettered right to abort children in utero prevents me, in conscience, to consider their candidates. With a few notable examples to the contrary, working to elect Republican candidates as a method of accomplishing substantial change has been a fool’s errand.

There are exceptions.

In 1980, I supported the election of John East as North Carolina’s junior senator. He joined the Senate during a Republican ascendancy there. Ronald Reagan, a Republican, took the White House. The Republican ascendancy resulted from the investment of committed grassroots activists. Folks expressed their deep, passionate concern over legalized abortion and other issues by turning off the TV and doing the hard work of political campaigning.

I know.

I was one of those folks. My mother and I got a copy of the voter rolls for Onslow County, North Carolina. We reviewed the county’s election records, including addresses, telephone numbers, and voting histories. All that effort was preparation for our ground campaign, a telephone campaign here in Onslow County. That campaign was educational and motivational in nature. It was designed to produce a reliably pro-life turnout at the polls. John East’s election was an effect of the serious effort of folks like us.

Supporting John East was no mistake.

True to his word, he took Senate responsibility for a legislative approach to overturning Roe versus Wade. In Roe, the Supreme Court legalized abortion on demand in the United States.  Importantly, the Court asserted that it lacked legal competence to answer the question “when does human life begin?” Presumably, the Court offered that description of the limits of its power as justification for its ultimate conclusion that States had wrongly claimed an interest in the life of an unborn child. After all, if the Court could not determine that a child in the womb – at any early stage of development – was human and alive, it could readily dismiss a State’s interest in protecting such lives by law.

Senator East orchestrated the Senate Judiciary Committee’s consideration of the Human Life Bill, Senate Bill 258. The Human Life Bill grew out of Steven Galebach’s analysis of the Roe Court’s disclaimer of competence to decide such questions. Galebach argued that the key question – whether a human child’s life is at stake in abortion – was capable of being answered.

For Galebach, the refrains from pro-abortion advocates – telling Roe’s opponents that the only resort left to them to overturn Roe was the ponderous and difficult task of amending the Constitution – rang hollow. With the Supreme Court’s declared incompetence to answer the question of when human life begins, Galebach proposed that Congress had the competence to examine the issue, that best scientific evidence and medical evidence proved that a unique human being came into existence, was alive, at conception. From such a conclusion, made by Congress fully within the bounds of its legislative competence, Galebach envisioned that a legal challenge would bring the matter back to the Supreme Court. In such a case, Galebach postulated that the Court would defer to the legislative fact-finding by Congress.

Senator East’s proposal, Senate Bill 258, embodied Galebach’s ideas.

Of course, Senators and Congressmen do not necessarily possess special knowledge or training positioning them to resolve questions addressed by Biology and the medical sciences. So the Senate Judiciary committee, to which Senate Bill 258 was assigned, scheduled legislative hearings to assemble and assess the science on these questions.

If you did not live through the time, the high drama, political hijinks, and general shenanigans have been lost to you until now.

As to the biological and medical sciences a long a growing body of evidence fully supported a factual conclusion that a distinct, living human entity comes into existence at conception. Building a legislative fact-finding record for that conclusion – from the testimony of recognized experts in human genetics, embryology, and fetology – was simplicity itself. Here are some brief excerpts from testimony submitted to the Senate Committee:

“I have learned from my earliest medical education that human life begins at the time of conception…. I submit that human life is present throughout this entire sequence from conception to adulthood and that any interruption at any point throughout this time constitutes a termination of human life…. I am no more prepared to say that these early stages [of development in the womb] represent an incomplete human being than I would be to say that the child prior to the dramatic effects of puberty…is not a human being. This is human life at every stage.”

Dr. Alfred M. Bongioanni, professor of pediatrics and obstetrics at the University of Pennsylvania. 

“[A]fter fertilization has taken place a new human being has come into being. ... [This] is no longer a matter of taste or opinion, ... not a metaphysical contention, it is plain experimental evidence. ... Each individual has a very neat beginning, at conception.” 

Dr. Jerome LeJeune, professor of genetics at the University of Descartes in Paris. 

“By all the criteria of modern molecular biology, life is present from the moment of conception.”

Professor Hymie Gordon, Mayo Clinic. 

“It is incorrect to say that biological data cannot be decisive…. It is scientifically correct to say that an individual human life begins at conception…. Our laws, one function of which is to help preserve the lives of our people, should be based on accurate scientific data.” 

Professor Micheline Matthews-Roth, Harvard University Medical School. 

“The beginning of a single human life is from a biological point of view a simple and straightforward matter—the beginning is conception. This straightforward biological fact should not be distorted to serve sociological, political, or economic goals.” 

Dr. Watson A. Bowes, University of Colorado Medical School.

Frankly, the entire Nation ought to have fallen under a kind of cognitive dissonance that such clear, undisputed science existed proving the vital humanity of the unborn offspring of human beings while, at the same time, the Nation’s highest Court offered its own incompetence to answer the question at the heart of a State’s asserted interest in the life of an unborn child.

Once the Judiciary Committee unveiled its juggernaut of genetic, medical, and scientific testimony and evidence, an outcry arose from elements in the legal and medical academic communities. The effect of that outcry was to push to recast the essential question raised by the Human Life Bill from a fact-based one answerable by science and medicine to a metaphysical, philosophical one. Doing so successfully would have simply positioned a contentious issue with a fairly obvious answer as an intractable one. In turn, that intractability would secure the status quo: legalized abortion on demand.

A hue and cry erupted with the Senate hearings on Senate Bill 258. The record was held open for the addition of opposition statements. An odd juxtaposition became evident.

Pro Roe v. Wade activists, the kind of folks that invented the chant, “keep your rosaries off my ovaries” insisted that opposition to abortion was rooted in religious belief. Rather than frankly acknowledging the uncontradicted science, they focused their rhetoric on the theological and philosophical questions of life. The worst of that approach came from the situational ethics of Peter Singer. (Notoriously, Singer also argued that no child should be conceded to be alive until a sufficient time had passed after birth to allow screening for genetic anomalies and defects.)

On the opposing side, anti-Roe activists, for many of whom an undeniable religious component compelled their conscientious opposition to abortion, focused their rhetoric on the basic facts of science and medicine. For them, for me, opposition to abortion might embody a precept of religious conscience but was warranted entirely on the genetic and scientific fact that, from conception, each life is distinct from its mother, biologically alive, and genetically human.

Howard Baker, Republican Senator from Tennessee, thrust himself into this maelstrom of contention. While the logical, factual, and rhetorical bases for Senate Bill 258 plainly supported the push for action, Baker brought the effort to a dead stop. Rather than chiding the science-contrarians, Baker turned on the social conservatives. Me and millions of others like me. Baker barked that “social issues” had to be set aside. The “important” issues of the economy have to take precedence in the Senate’s business.

A decade later, no substantial action had come from the Senate on the central constitutional questions related to abortion. What we did get was the confirmation of a checkered lot of judges and Supreme Court justices, including Sandra O’Connor, Anthony Kennedy, and David Souter. The O’Connor – Kennedy – Souter triumvirate joined together in a in a notorious tripartite opinion reaffirming the central holding of Roe that the Constitution guarantees, as an aspect of liberty, a woman’s choice to abort a pregnancy.

In an unfortunate irony, that reaffirmation of Roe came at the same moment that another politician rose to the presidency on the mantra, “it’s the economy, stupid.” Bill Clinton’s catchphrase was that Democrat’s indictment of the failure of the Baker doctrine that deferred treatment of social issues until America’s soft economy was reinvigorated.

(Absolute fairness requires that I acknowledge a few legislative initiatives on the subject of abortion. There were two principal ones. First, the Hyde Amendment prevented federal funding of abortions. Second, an amendment to Title X family planning funding required that private family planning providers participating in that funding program sequester federally funded programs for family planning from any program they also conducted that provided referrals for, or provided abortion services.)

Over 35 years have passed since North Carolinians elected John East to the Senate. An entire generation of time has passed. Deferring substantial action on “social issues,” under the Baker diktat, meant that no opportunity for an up–or–down vote had has been had on an amendment to the Constitution overturning the Supreme Court’s extra-constitutional adventurism.

By failing to confront the Court’s overreach, the Congress likely shares responsibility for other brazen excesses by the Court, such as its usurpation of the right of the States to provide a framework for marriage based on traditional heterosexual models. As with Roe, the Obergefell decision does not constitute an earnest search for history or meaning by the justices. As with Roe, it is only the stated preferences of the Court’s majority, gussied up in black robes.

A vigorous Congress, fully occupying its role, could well tame the Supreme Court’s excesses. Examples from history suggest as much. A few here will suffice.

In the Great Depression, Franklin Roosevelt and the Congress attempted to use several public benefit programs to address the impact of the depression on the Nation’s economy. Those programs – embodying Keynesian notions that a recovery could be best fueled by government programs of employment, construction, and the like – were keystones of the recovery programs adopted by the “political” branches of the federal government. In a series of cases, however the Supreme Court struck down eight of the programs, including the National Recovery Act and the Agricultural Adjustment Act.

Roosevelt took the decisions personally.

Rather than considering the possibility court had correctly construed constitutional limits on his power, Franklin went on the attack. He suggested that advanced age of certain justices explain their decisions. As a solution, on February 5, 1937, Roosevelt proposed his “court packing” plan.

Roosevelt’s court packing plan would have increased the number of slots for justices on the Supreme Court. Enlarging the Court would allow Roosevelt and a sympathetic Senate to populate the court with new justices allowing Roosevelt to construct a new court paradigm sympathetic to his programs.

Thomas Jefferson famously complained of the difficulty in making substantial changes where the courts of the nation had been packed with the nominees of the Federalist governments that preceded his in a letter to Judge Spencer Roane, he spoke of the “revolution of 1800” was stymied by judges holding lifetime appointments.

Franklin’s plan set aside any pretense that justices of the Supreme Court were apolitical. That pretense crashed hard on the rocks of his proposal. Everyone knew that Roosevelt’s justice nominees would be screened for their views on the Constitution and on the authority of the political branches to adopt the kinds of economic programs the court had struck down.

Roosevelt’s attack on the Court succeeded. Just two months later, before legislation enlarging the Court could be passed by the Congress, two of the Court’s justices made a startling about face on their constitutional philosophy, and in cases addressing the constitutionality of the Social Security Act and the National Labor Relations Act, a new, narrow majority of the Court upheld the constitutionality of these federal programs. As a result of that concession, the Congress turned away from the court packing plan, the Senate defeating the plan by a nearly 4-1 majority.

Another brief, but obvious, example of Congress -- and the Nation -- upbraiding the Supreme Court is found in the propounding of and ratifying of the Reconstruction Amendments to the Constitution. Prior to the Civil War, the Nation had lived under the uneasy truce called the Missouri compromise for three decades. That legislative agreement had fostered westward expansion, balanced admission of slave and free states, and had pushed the contentious issues of human slavery down the road.

In Dred Scott vs Sanford, the Supreme Court struck down the Missouri compromise. The Court held that Scott, as a black man, was not a person under the Constitution. As a consequence, in the courts view, Scott lacked the capacity to sue or be sued in the courts of the United States. Half-million lives and $80 billion in war costs later, the Nation rejected slavery through the 13^th amendment, granted citizenship status and rights of due process and equal protection to blacks through the 14^th amendment, and extended the elective franchise to them through the 15^th amendment.

Other examples exist, including the impact of the Congressional Watergate investigation on the Nixonian presidency, the impact of the Iran Contra investigation on the second term of Ronald Reagan, and the impact of the Whitewater investigation and impeachment on Bill Clinton’s second term. In each of these cases, Congress rose up in its constitutional role of oversight of the Executive Branch to turn back what it perceived either as possible criminal conduct (Nixon, Clinton) or extra-constitutional adventures.

I’m sure you each have your own thoughts on civic participation at its value in securing or rearranging societal constructs such as marriage and personal rights such as the right to life.

Do not misunderstand me.

I am not abandoning civic dissipation. I merely acknowledge a failure of expectations. Working for, voting for, the election of candidates because of their affiliation with the Republican Party has not induced that radical reconstruction of our society as a constitutional Republic of limited powers as I had hoped. Nor has it reinvigorated the keen devotion to the primacy of liberty that that indomitable commitment that was best expressed by Patrick Henry, “Give me liberty or give me death.”

Don't Be A Billy: Don't Vote For Bernie!

I have five dollars. You have five dollars. Fred has five dollars.

Billy?

Billy doesn't have five dollars. Billy says that it is unfair that we each have five dollars, and that he has none.

Billy joins with Sue and Tom and Lisa and hundreds of thousands more. They talk about the immorality of disproportionate wealth. They talk about how those who are "the haves" are besting the system and using it to their advantage to keep others from having their own five dollars.

With sufficient numbers, Billy and his political following form a political alliance, call it a party. They pass a law requiring everyone to contribute a "fairness" assessment. The purpose of the "fairness" assessment is to provide those who have been locked out of opportunity with a ready pool of cash.

The effect of the "fairness" assessment is that Fred, you, and I question why we worked hard, scrimped, saved, did without, deferred gratifications, etc., and we decide to reduce our labors and efforts. After all, thousands and thousands have joined together and made our actions seem most unseemly, perhaps immoral.

The "fairness" assessment cannot keep pace with the outflow of cash that was committed to by those that adopted it. They march on the printing operation where the money is actually printed. They seized the presses and begin a 24/7 operation creating additional dollars that do not reflect the product of a "fairness" assessment.

What a wonderful new world! If only we could have realized this sooner.

A problem develops.

There are SOOOOOOOOOOO many dollars on the market now, everyone is buying more and demand goes up. As demand rises, the price rises. Higher prices demand more money. More money means re-evaluating the "fairness" assessment. Maybe one should be attached to the the value of estates when people die? Maybe one should be attached to interest earned on savings and investment? Maybe one should be attached to the earnings of corporations?

With "fairness" assessments imposed on savings, there is a perverse incentive and people stop saving, but they do keep spending and spending creates demand and demand justifies increases in prices and increases in prices requires additional printing of dollars, whether funded by "fairness" assessments or whether covered by a new invention devised by the Billy Party. They came up with the idea of using IOUs to provide value for the dollars. They'll just promise to be able to pay the thousands, millions, billions, and trillions of accumulated promises to pay that the newly minted dollars represent.

Soon, the price of milk is $8.00, the price of a loaf of bread is $ 5.00.  The price of toilet paper? Well. Actually. Since no one can afford to purchase trees to make pulp to make paper no one has seen toilet paper in months.

The Billy Party begins to distrust its own members. It sees greed in their eyes, their constant hectoring for more, more, more, while doing less, less, less. So the Billy Party imposes a framework of controls:

• Wages are fixed at set rates by the Billy Party.
• Prices are fixed at set rates by the Billy Party.
• The Billy Party orders farmers to produce X gallons of raw milk each day.
• The Billy Party orders bakers to produce Y loaves of bread each day.
• The Billy Party orders toilet paper manufacturers to produce Z rolls of toilet paper each day.

The result?

The people living in the nation ruled by the Billy Party water their milk down 3 parts water to 1 part milk to make it last and to make it affordable.

The people living in the nation ruled by the Billy Party think of white bread as a luxury, nearly a dessert in character. A child that wants the crust peeled off is forced to watch as parents and siblings eat their piece of bread to teach them not to be picky.

The people living in the nation ruled by the Billy Party wipe their asses with their hands, and they aren't even Arabs, because ordered toilet paper manufacturers to make toilet paper will not force trees to grow, to chop themselves down, to be ground into pulp, to be shipped to the nation ruled by the Billy Party, and to be milled into toilet paper.

No one shakes hands with the people living in the Nation ruled by the Billy Party.

And it all started with Billy claiming it was unfair that three others had five dollars that he didn't have!

The moral of the story:

Venezuela is a festering cesspool that proves the vapidity of socialism. If you are voting for Bernie Sanders​ U.S. Senator Bernie Sanders​ We Want Bernie Sanders​, you ought to go live in Venezuela so you can look into the future you want to create here in America.

Sam, A Natural Born Catizen, for President?

Our recently deceased cat, Sam, came to me in a dream last night after the Republican debate. It was a joyful if surprising reunion. Recent news stories portraying cats as neurotic would-be murderers clearly came out of the canine community. Sam, though undeniably a fierce hunter, was a dignified and gentlemanly member of our family.

Sam quickly threw me for a loop.

“Jim,” he spoke, “I need your support in the Republican presidential primary, can I count on you?”

“I had no idea you were running,” I told him.

“Why, because I am a feline-American?” he hissed at me.

Clearly, I was on dangerous ground with my old buddy.

“Sam, you know, as a black man,” I reminded him, “I can be neither prejudiced nor speciest.”

“What then?” he retorted.  As he did, his posture shifted to that familiar low-slung threat posture of the hunting cat.

With trepidation, and as matter-of-factly as I could manage, I said “well, Sam, old friend, you are dead!”

“And?” he replied.

I looked down, worrying that he might see my incredulity at the whole prospect of a ghost running for, let alone winning, the Republican nomination for the presidency.

Pausing for a moment, I considered how to explain the Sam that he really was not eligible to be elected president, and how to do it without being mean or ugly, and certainly without stepping on his toes, err, claws.

I could, I thought, take an indirect route.

I could paint a portrait of service as president in such a light that Sam would see that it was not something in which he was truly interested. The long hours, the handshaking, the baby kissing, the endless fundraising, the mundane tasks of the presidency would eat into the normal routine of one who enjoyed lounging on the back of the couch, there basking in the sunlight coming through a window, or chasing the occasional mice, birds, or squirrels, or staring longingly at the cat food bag. Being indirect had its advantages, especially when the person, err, cat to whom I was speaking came equipped with a sharp set of claws.

Still, while cats may creep in on soft paws, I preferred the direct route.

“Sam, what is the point of running for the office of president if you’re not eligible to be elected to it? As strange as it may seem to you,” I told him, “although there are very few legal requirements to be eligible for the office of president, the truth is that you probably do not satisfy one of the requirements, perhaps more than one.”

At this point, Sam was licking his paws and using his moist paws to groom his face. He paused, “go ahead, do tell.”

“It’s like this, Sam,” I said, reaching back into my memory of the Constitution, “to be eligible to be elected president, the US Constitution sets a small number of qualifications.”

My ethereal visitor stretched, as felines do, pawed the couch cushion on which he sat, as though he were kneading dough, then, settling down, simply said, “Proceed.”

“Article II of the Constitution creates the Executive Branch of the federal government. By executive, the Constitution means that part of the government that actually executes or carries out the laws.”

“Jim,” he snapped, “I’m not a school kid, get to the meat of it, and quick, because I’ve shortly got to go get to the meat of a bird!”

“Very well,” I responded, “in Article II, the Constitution has one clause, the Presidential Eligibility Clause, which sets the qualifications necessary to be elected president. It says,” and here I recited as best I could from memory:

“No person except a natural born citizen, or a citizen ofthe United States, at the time of the adoption of this Constitution, shall beeligible to the office of President; neither shall any person be eligible tothat office who shall not have attained to the age of thirty five years, andbeen fourteen Years a resident within the United States.”

“So,” I resumed with my explication of the text, “you have to be a natural born citizen, you have to be at least 35 years old, and you have to have resided in the United States for the previous fourteen years at the time of the election.”

Sam eyed me, quizzically. He harrumphed.

“Well, I was born in the Commonwealth of Virginia,” he reminded me.

(Sam was part of our family from about a year after his birth. He was, as I wrote in a previous post, A King Among Cats. While he had not previously told me where in the Washington metro area he was born, I always assumed he was a native Virginian.)

I could see where this line of thinking of his was leading.

“Sam, no doubt you were born in Virginia,” I assured him, “but it takes more than being born in Virginia to be a natural born citizen. You have to be a person.”

He interrupted me, “I thought you said you weren’t speciest?”

“It’s the Constitution, Sam, not me,” I replied apologetically.

He countered, “Is that the same Constitution that, according to the Supreme Court, considered black people like you to be chattels, property, and not persons?”

Obviously, Sam had been listening to my musings over the years, and knew my constant criticism of the Court for its oftentimes purposive misinterpretation of the Constitution. He had found my weakness, or at least my soft spot.

“Well, yes, it is. But the fault there was the Supreme Court’s, not the Constitution’s, and as so many for so long had behaved as though the Constitution was a blank slate on which creative justices were entitled, as justices, to write their preferred meanings of the words, rather than to apply the words with their common meanings.”

“I remember you saying once that one the justices had claimed that rivers, trees, streams and such should be treated as persons. Why would you think that a tree is a person, when it isn’t even a fellow member of the animal kingdom like you and me, and that we cats couldn’t be persons too?”

“Sam, you remember what I said then, if you remember me talking about Justice Douglas and his dissenting opinion in the Sierra Club v. Morton case.” I continued, “Justice Douglas was simply ignoring the plain meaning of the words of the Constitution, perhaps it was just an aspect of his advancing age and confusion, or, perhaps, he fell under the delusion of folks who thought trees were persons but babies before birth were not. In any event, his argument was made in a dissenting opinion because no other justice on the Supreme Court has ever claimed that non-humans could be persons.”

“Well,” he retorted, “at least you admit that a Supreme Court justice agrees with me. What’s the rest of your poor argument?”

I knew the rest of this conversation would not go well.

“As I said,” continuing my explanation, “to be eligible you have to be a ‘natural born citizen’ and the Constitution has always been understood to exclude any candidate from that category that is not a ‘human’ person. But you have to be more than a person, and more than just a citizen. You have to be a ‘natural born citizen’ to be eligible.”

Apparently that distinction caught his attention, “What’s the difference between a ‘citizen’ and a ‘natural born citizen?’”

“Exactly the right question, Sam!” I showed my excitement at his reasoning through things.

“A citizen of a country is a person, a human, that owes duties to that country and that enjoys rights and privileges not available to those who are not citizens,” recalling the things I wrote about citizenship in another post. 

“But the Constitution uses both the word ‘citizens’ and the phrase ‘natural born citizen’ so we have to be sure we understand each word and whether there are differences.”

He nodded encouragingly, so I continued.

“’Natural born citizen’ appears just once in the Constitution, in that presidential eligibility clause,” I winced a bit as he had his fun scratching me with his claws, “and nothing in that part of the Constitution defines ‘natural,’ ‘born,’ or ‘citizen,’ or ‘natural born citizen.’”

“If the words are not defined,” he posed the question, “why can’t they mean whatever they need to mean in order for me to be eligible to be elected President?”

“Because,” I tartly replied, “you, Sam, are no Humpty Dumpty and the Constitution is not ‘Through the Looking Glass!’”

“So, as you can see, there are actually two kind of citizens in the Constitution. One kind of citizen is a natural born citizen, the other kind of citizen is a not a natural born citizen.”

At that point, Sam pushed his head under my hand. I'd almost forgotten how much he enjoyed having his forehead and chin scratched. I began to work gently on it.

“Well Jim,” he asked, “What's the difference?”

“The difference, Sam” I explained, “is that some persons are born as citizens of a country, while others become citizens by operation of a law. Persons who are born citizens of a country are ‘natural born citizens.’ Others, immigrants to the land, for example, apply for citizenship through a process called ‘naturalization.’”

“You see, before the Constitution, each of the 13 states had their own power to make citizens out of persons who were not yet citizens.”

At that point, Sam jerked his head up against my hand, “There you go with that person thing again.”

“I’m sorry, Sam.”

I continued, “In any event those who came to one of the states prior to the adoption of the Constitution could become citizens through the state law process for that state. With the adoption of the Constitution, the process for becoming a citizen was subject to change. The Constitution assigned to the Congress power to provide a uniform rule for naturalization.”

“In fact, after the Constitution was ratified, among its first acts, Congress passed the first Naturalization Act. The Constitution did not define ‘natural born citizen’ but, honestly, a definition for citizen was not needed. Because the meaning of ‘citizen’ was clear, and the phrase ‘natural born’ was readily understood to mean ‘one that was born in the country as a citizen, one who owes special duties to the country and who enjoys special status or privilege within the country, was the understood meaning of that term in the Constitution.’”

“So the Constitution gave to the Congress no power to define citizenship. It gave only the power to Congress to provide a uniform rule for becoming a citizen, ‘naturalization.’”

“So, some people are citizens because they are born here. Becoming a citizen by birth within it is an effect of our legal descent from England. At the time of our revolution, in England, everyone born within the United Kingdom was considered a subject of the crown. Our revolution from England did not have to do so much with our dislike for, or intolerance of English law, but with our rejection of the tyrannical application of it to Englishmen living in the colonies. So, when the colonies separated from England, and asserted their own separate station as nations, one of the first legal acts of those new nation-States was to adopt English law as the body of law for each of the States.”

“I don't want to get too deep in the weeds, Sam, but at that time, this legal principle – jus soli – governed citizenship by birth in England, and in the United States. Some other nations took a different approach. They followed a rule called ‘jus sanguinis.’ Under ‘jus sanguinis,’ a person, when born, took the same citizenship as their parents. Neither England nor the United States ever followed jus sanguinis.”

“So, when the Constitution said that to be elected president one had to be a ‘natural born citizen,’ it was making clear that while there were both ‘born citizens’ and ‘naturalized citizens’ only a ‘natural born citizen,’ that is born here in the United States, enjoys the special status of eligibility to be elected president.”

“You see, Sam, if the only issue of eligibility for you was whether you were born here, you would be eligible to be elected president. That other matter, though, the fact that the term ‘citizen’ is limited to ‘person,’ pretty much puts the kibosh on your eligibility.”

“Once again with the speciest dominance,” Sam retorted. “I can’t count on four paws the number of times I have heard you talk about the Dred Scott case, where the Supreme Court ruled that blacks were not, could never be, ‘persons.’ You’re an attorney, and a constitutional law attorney at that, couldn’t you file a lawsuit to get a decision that I am a natural born feline citizen?”

“Alas, Sam,” thinking that I might not dissuade him from his pipe dream, “it took a Civil War, nearly a half million dead, and 80 billion dollars of war-making expense to get to the point where the Nation rose up and reversed Dred Scott by adopting the Fourteenth Amendment. I suspect we aren’t ready in this country to fight a costly, deadly war to win you status as a feline-citizen. Perhaps PETA would take on the case?”

“In any event, friend, the other eligibility conditions present problems for you.”

“How so,” Sam asked me.

 "Well, Sam, under the Eligibility Clause, you have to be at least 35 years old and you have to have resided in United States for the previous 14 years. By my best reckoning, you were about 11 years old when you passed away. That means  you would not have been 35 years old nor would you have lived in the United States for the previous 14 years.”

“Now just a doggone minute,” Sam interrupted me, “you know, and I know, that cats age differently than humans. In fact, you say I was 11 years old but most feline experts agree that I was 15 by my first ‘human’ birthday, 25 by my second ‘human’ birthday, and had reached the human equivalent of 60 years of age at the time I turned 11 in human years.”

“I have another bone to pick with you,” Sam continued.

“Didn't you say that, to be eligible to be President, a person had to be a ‘natural born citizen’ of the United States? And didn't you say that to be a ‘natural born citizen’ of the United States one had to be born in the United States?”

“Certainly,” I replied.

“But there is a Republican candidate for the nomination who was not born in the United States. Why is he eligible to be elected president and I am NOT?”

“You're referring to Ted Cruz,” I said, “in my book, Ted Cruz would make an excellent president, but, like you, he is not eligible to be elected, at least not according to my understanding of the Constitution.”

“This is a long-running dispute that I have had with those who say that Ted Cruz is eligible to be elected president. Ted was born in Canada. By Canadian law, Ted Cruz was born a citizen of Canada. Canada, like the United States, is a nation whose laws were based on English common law. Unlike the USA, Canada continues its close relationship with the United Kingdomas part of the Commonwealth of Nations. A person born in Canada, is, by Canadian law, a citizen of Canada and also a subject of the crown of England.”

“Well then, Jim,” Sam again interrupted, “why is Ted allowed to run and I am NOT?”

“Sam, remember when I said that the Constitution grants to the Congress the power to make a uniform rule for naturalization? All the way back to the first Naturalization Act and coming forward, Congress has asserted a power to grant ‘natural born citizen’ status to persons born outside of the United States under certain conditions.”

“This explanation may be a little convoluted, but let me put it this way:  In England, under the common law, every person born within the boundaries of the kingdom was a subject of the crown, what we would call a ‘citizen.’ There was one exception to that rule: children born to foreign emissaries - - representatives from foreign countries serving their country in England - - were not considered citizens or subjects of the Crown.”

“That special rule reflected international law and international legal principles that were necessary to allow a system of international diplomacy.”

Sam stretched again. I considered that I might be losing his attention but continued, “Here's an example.”

“Suppose the government of France, under King Louis, sent an ambassador to England. The Ambassador brings his family with him. While serving France in England, the French ambassador’s wife gives birth to a son. Under English law, absent the exception, the Ambassador now has an English son, and the English Crown has a new subject, and the French Crown has an ambassador with a foreign son. So the principle developed, that children born to foreign emissaries on duty in another country did not have the citizenship of the nation in which they were born. Instead, they had the citizenship of their parents’ home nation.”

“Jim,” Sam interrupted again, “that doesn't explain why Ted Cruz is eligible to run for president and I am NOT. Was one of Ted parents an ambassador to Canada?”

“No, you're right, Sam,” I said. “That doesn't explain how Ted is eligible, and no, neither of his parents were ambassadors to Canada. In fact, Ted’s mother was a US citizen; his father was an expatriate citizen of Cuba. Under the jus soli rule I mentioned before, Ted clearly would not qualify as a ‘natural born citizen.’ Instead, today, and at the time of Ted Cruz birth in Canada, to the Naturalization Act provides that certain children born outside the USA to certain citizens of the United States are citizens at birth.”

“When Congress passed the Naturalization Act, as I said, they were exercising the Naturalization power. The first Naturalization Act expressly provided that persons born abroad to certain US citizens would be ‘natural born citizens’ of the United States. Congress subsequently repealed that act, and never again included such a provision in future versions of the Naturalization Act.“

“Just a second, Jim,” Sam snapped, “you said ‘naturalization’ made people who weren’t citizens into citizens. If Congress used its naturalization power to pass the Naturalization Act and included in the Act a section making some people born outside the United States citizens at birth, then wouldn’t those persons actually be ‘naturalized citizens?’”

“And that, Sam, is exactly why Ted isn’t eligible to be president, much as I like the man, his character, and his policies.”

Suddenly Sam stood. He turned and turned, rubbing his side against my leg. Then he turned and looked up at me, “Jim,” he said, “I wonder if you would mind helping me draft a press release? I think I’m going to withdraw from the race.”

“My pleasure, Sam,” I said, petting his head as he faded into memory, “my pleasure entirely.”

Arsenic and Old Lies

Growing up, there were a few favorite old movies I remember watching. One, "Arsenic and Old Lace," is a farcical comedy about an elderly pair of aunties who took bachelors in as boarders, and then gave them elderberry wine laced with arsenic, was a favorite. Cary Grant, the loving nephew, begins in the story with no idea of his aunts' proclivities to murder. He does know that his uncle, a bit demented, thought himself to be Teddy Roosevelt, and in that role, he was regularly digging new "locks" for the "Panama Canal" in the aunties' basement. His construction activities conveniently provided burial plots for the poisoned bachelors.

If you haven't seen the play or the movie, you are missing a gem. I am including this excerpted clip to set the stage for this post:

You really should give "Arsenic and Old Lace" a try.

Remember, when I watched the movie as a kid, there was no such thing as John Wayne Gacy or Ted Bundy or other, now notorious, serial killers, at least not whose mayhem came into our home in the drum beat of the 24 hour news cycle. So two elderly women poisoning lonely bachelors could still be funny, and the play did speak to an audience that could distinguish Teddy Roosevelt from his cousin Franklin.

Today, however, we are living inside the farce. We are under the ministrations of Arsenic and Old Lies.

This notion came to mind as I thought about the recent Democratic Candidates' debate.

Excepting Jim Webb, whose Democratic party credentials are undoubtedly doubted by Democrats (after all, he made out a case during the debate that "an enemy" was someone that was literally trying to kill you with a grenade (an episode from his wartime service in Vietnam), the candidates, answering a question about the enemy of which the candidates were most proud of making, America was treated to a laundry list of American freedom and enterprise, represented by such "enemies" as health insurance companies, the National Rifle Association, Wall Street, the rich, and Republicans.

So the association whose fairly moderate positions regarding the right to keep an bear arms is a worthy enemy for a political candidate to have acquired?

Why?

Why would a candidate for the Nation's highest office take pride in so positioning themselves politically that an organization that supports a clear cut provision of the Constitution -- the Second Amendment -- might be considered by them as an enemy?

And why is it a matter of bragging rights to have exacerbated the economic liberties of health insurance companies or of "Wall Street" (whatever "Wall Street" is supposed to mean in that context, it carries the connotation of American businesses)?

The answer is simple.

Again, setting aside Jim Webb, the candidates seeking the Democratic nomination are not Democrats as John Kennedy was, or as Truman was, or even as Franklin Roosevelt was.

As a group, and as individuals, they are Statists, they are progressives, they are Socialists.

Now we have lived, as a People, long enough to watch the rise of socialism in Europe, the Americas, Asian and Africa. Its collapse, in the Soviet Bloc, we have witnessed too. Were it has not been abandoned, its wreck and ruin continues unabated.

The depredations of socialism are evident in the land of Obama's new best buddies, the Castro brothers. Cuba's organized and planned economy has the been operating inefficiently since Castro's revolution, and the nation's inability to mount a successful domestic and international economic enterprise is well understood. Those very same ideas of central control and management of economy put the Soviet Union in the position of being unable to sustain a long term move-for-move build up in competition with the United States, and ultimately resulted in the USSR collapsing under its own weight. The current terrible economic suffering in Venezuela is the direct result of these same socialistic ideas put in practice.

Yet here we have old lies being fed to us in an unction of elderberry wine. Our old uncle, Bernie Sanders, thinks he can build up the house by digging holes of taxation under the foundation. Old auntie Hillary will "do us good" even if it means killing us.

I prefer the movie to the threatened reality of a farcical America under their poisonous, tired, and disproved old lies.