Month: March 2010

The State of the Union, Obama-style

My fellow Democrats — and anyone else who may be watching — I make this special appearance tonight for the purpose of gloating, er, celebrating our recent victory, which was won against the will of the people, and which will make them poorer and less healthy. But never mind that, the important thing is to have played the game of politics and won — the consequences be damned.

Having succeeded in attaining a major goal of this administration, I will now turn to our other major goals, which are to:

  • tax and regulate Americans until their entrepreneurial spirit and work ethic sink to European levels
  • reject our traditional allies, while bowing to the forces that would destroy us — which will make us even more European.

I close this brief address by paraphrasing the sainted John F. Kennedy: Ask not what your country can do for you, but what your country can do to you if you are a heterosexual male with a good job, above-average income, and traditional views about family, morality, limited government, and fiscal responsibility. The worst is yet to come. Bwah-ha-ha-ha-ha.

A Declaration of Independence

REVISED, 04/02/10 and 04/03/10

A note to Tea-Partiers. It is time to channel your outrage, constructively and nonviolently. My suggestion: hold a convention in each State; adopt — in the name of the people of each State — a declaration of independence from the unconstitutional acts of the government of the United States; engage the millions of silent but equally outraged Americans who share your views by asking them to join you in signing the declarations. An articulate declaration that is joined by millions of Americans should cause many politicians — even Democrats — to rethink their allegiance to the politics of pork, regulation, and taxation. A declaration of independence from unconstitutional acts might look like this:

The people of the State of _______________ declare to the people of the United States and to their governments that

The Constitution of the United States and all laws made in accordance with it are the supreme law of the land. The ratification of the Constitution resulted in the establishment a government of the United States (the central government) for the purposes of making, executing, and adjudicating laws. But the acts of the central government are valid and binding only when they are in accordance with the Constitution.

In fact, the legislative, executive, and judicial branches of the central government have abused their powers by making, executing, and upholding laws contrary to the Constitution; for example:

A decennial census is authorized in Article I, Section 2, for the purpose of enumerating the population of each State in order to apportion the membership of the House of Representatives among the States, and for no other purpose.

Article I, Section 1, vests all legislative powers in the Congress, but Congress has authorized and allowed unelected, executive-branch regulators to legislate on myriad matters affecting the liberty and property of Americans.

Article I, Section 8, enumerates the specific powers of Congress, which do not include such things as establishing and operating national welfare and health-care programs; intervening in the education of America’s children; regulating interstate commerce beyond ensuring its free flow; regulating intrastate commerce and private, non-commercial transactions; lending money and guaranteeing loans made by quasi-governmental institutions and other third parties; acquiring the stock and debt of business enterprises; establishing a central bank with the power to do more than issue money; requiring the States and their political subdivisions to adopt uniform laws on matters that lie outside the enumerated powers of Congress and beyond the previously agreed powers of the States and their subdivisions;  and coercing the States and the political subdivisions in the operation of illegitimate national programs by providing and threatening to withhold so-called federal money, which is in fact taxpayers’ money.  (The notion that the “general welfare” and/or “necessary and proper” clauses of Article I, Section 8, authorize such activities was refuted definitively in advance of the ratification of the Constitution by James Madison in No. 41 of the Federalist Papers, wherein the leading proponents of the Constitution stated their understanding of the Constitution’s meaning when they made the case for its ratification.)

One of the provisions of Article I, Section 10, prohibits interference by the States in private contracts; moreover, the Constitution nowhere authorizes the central government to interfere in private contracts. Yet, directly and through the States, the central government has allowed, encouraged, and required interference in private contracts pertaining to employment, property, and financial transactions.

Amendment I of the Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” But Congress has nevertheless abridged the freedom of political speech — our most precious kind — by passing bills that have been signed into law by presidents of the United States and, in the main, upheld by the Supreme Court of the United States.

Amendment IX of the Constitutions provides that its “enumeration . . . of certain rights, shall not be construed to deny or disparage others retained by the people.” But Congress, in concert with various presidents and Supreme Court majorities, has enacted laws that circumscribe one of our time-honored freedoms: the freedom of association.

As outlined above, the central government routinely and massively violates Amendment X, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Legislative, executive, and judicial acts of the central government have perverted the meaning of Amendments XIII, XIV, and XV — which properly abolished slavery and outlawed racial discrimination by government — to require discrimination on behalf of certain “protected groups” designated by law, to the detriment of groups not thus favored.

These and other abuses of power by the central government are grounds for civil disobedience, at the least, and secession, in the extreme.

With regard to secession, there is a judicial myth — articulated by a majority of the United States Supreme Court in Texas v. White (1868) — that the union of States is perpetual:

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

The Court’s reasoning — if it may be called that — is born of mysticism, not legality. Similar reasoning might have been used — and was used — to proclaim the Colonies inseparable from Great Britain. And yet, some of the people of the Colonies put an end to the union of the Colonies and Great Britain, on the moral principle that no person or people is obliged to remain in an abusive relationship. That moral principle is all the more compelling in the case of the union known as the United States, which — mysticism aside — is nothing more than the creature of the States and the people thereof.

It was only by the grace of nine States that the Constitution took effect, thereby establishing the central government. Those nine States voluntarily created the central government and, at the same time, voluntarily granted certain, limited powers to it. The States understood that the central government would exercise its limited powers for the benefit of the States and their people. Every State subsequently admitted to the union has entered into the same contract with the central government.

But, as outlined above, the central government has breached its trust by exceeding the powers granted to it. In fact, the central government’s abuse of power has been so persistent and egregious that a reasonable remedy on the part of the States — individually or severally — is to declare the Constitution null and void. Each and every State, in other words, has the right to secede from the union and to withdraw from the central government its support and the support of the people.

Two facts militate against secession as a remedy for the central government’s abuse of power. First, the States have much to gain by remaining joined in union: mutual defense and the free movement of people, goods, and services among the States. Second, because the central government has acquired overwhelming might, and because that might would no doubt be used to suppress secession, it would be sheer folly to secede — despite the moral and legal rightness of doing so.

The only practical alternative to secession is civil disobedience. Accordingly, the people of ______________ do solemnly state the following:

We reaffirm our allegiance to the Constitution of the United States, and hereby pledge to preserve, protect, and defend it against all its enemies, foreign and domestic. The central government of the United States, through prolonged and egregious abuses of its delegated powers, has proved itself an enemy of the Constitution.

Having assembled peacefully to consider the remedies available to us, we petition the central government to honor the Constitution by negating and reversing all of its unconstitutional acts within a reasonable period of time, which shall be no more than five years. If the central government fails to negate and reverse all of its unconstitutional acts within five years, it will be within the moral and legal rights of the people of this State to sever the ties of this State to the central government, to refuse all services and emoluments that may be offered by the central government, to withhold all services and payments to the central government, and to reclaim — for the benefit of the people of this State — any and all parcels of land and bodies of water within the boundaries of this State that are (or may be) held in the name of the central government.

The foregoing notwithstanding, the people of this State — despite their moral and legal rights to sever this State’s ties to the central government — shall not withdraw from the community of States which is known as the United States, and shall not take up arms against the central government to enforce their rights. But the governments and people of this State may refuse peacefully to comply with the unconstitutional laws, regulations, executive orders, and judicial holdings of the central government. Such refusals shall lead to violence only if the central government uses force to exact compliance with its unconstitutional laws, regulations, executive orders, or judicial holdings, thus requiring the people to act in self-defense.

Done, on this day of ______________________________, by the people of _______________ in convention, and subscribed to by the delegates to the Convention and other citizens of _______________, whose signatures are appended hereto.

Attest:

_______________, President of the Convention

_______________, Vice President of the Convention

_______________, Secretary of the Convention

P.S. The foregoing makes a legal case for secession. A different case, which I make here, is that secession is valid because the Constitution did not bind the whole of “the people” when it was ratified, and could not have bound future generations.

Quick Takes

1. Bryan Caplan, who is prone to wrong-headed generalizations, is at it again. He defends survey research (e.g., “how happy are you?”) by pointing out that all economic statistics are based on surveys — as if to equate subjective measures of happiness with objective (if not precise) measures of employment, unemployment, prices, etc., etc.

2. Caplan does himself one better when he argues for a “Consumer Satisfaction Standard.” He writes:

Most economists still cling to the Demonstrated Preference Standard: If A buys X, then X makes A better off by definition.

Actually, “most” economists (if I may speak for them) would say that at the time A buys X, he believes that buying X will make him better off. If A later suffers buyer’s remorse, that is simply the result of having acquired additional information that A can then apply to future decisions. Only a supremely naive economist (Caplan?) would believe that humans are perfectly prescient about the consequences of their decisions.

Unabashed, Caplan continues by offering the Consumer Satisfaction Standard (CSS):

[I]f A buys X, and would do so if he had the chance to make the decision over again, then X makes A better off.

The validity of the CSS rests on the assumption that the buyer somehow knows that buying something else (Y) instead of X would have made him happier. But the buyer can’t know that unless he actually buys Y and finds that he doesn’t suffer buyer’s remorse. This kind of imaginary second-guessing could go on forever.

3. I must give Caplan credit for challenging the addiction-as-disease school of psychology. He writes:

While I think that addictive behavior should be legal, it’s still irresponsible and emotionally abusive towards the people who care about you.   The addiction-as-disease story shifts the blame from where it belongs – the self-destructive addict – to family, friends, co-workers, employers, tax-payers, and other victims.  Calling bad behavior a “disease” may be merciful, but it’s unjust.

Bravo!

4. Megan McArdle, as usual, makes sense. Some of her predictions about Obamacare:

[A]t least one of the major funding sources, and possibly all of them, will be substantively repealed:  the Medicare cuts (except Medicare Advantage), the excise tax, and so forth.

This program will not reduce the rate of growth in medical costs by anything like 1.5% a year.

A fiscal crisis of some sort is quite likely by 2030, though not just because of this program.  But this program will make it worse, either by increasing the deficit directly, or by using up the low-hanging fruit that should have funded Medicare reform.

By 2030, there’s an 80% chance that the government will have imposed substantial price controls on pharma and other medical technology–and this will noticeably slow the rate of innovation.

5. Finally — and aptly — is a review of Thomas Sowell’s Intellectuals and Society. The reviewer, J.R. Nyquist, refers to the subjects of Sowell’s book as “Civilization’s Wrecking Crew.”  An excerpt:

. . . Sowell offers a detailed examination of those who carry today’s ideological equivalent of the Black Death. He defines the term “intellectual” as referring to those teachers and writers who chiefly deal in ideas, and are paid — by the media or the state — for batting ideas around. By focusing on intellectuals who are paid for intellectualizing, he is able to make a series of observations about their ideological tendencies, their lack of accountability, and their tendency to live outside the “real world.” . . . It is one of those sociological tragedies that intellectuals act as if “their special kind of knowledge of generalities can and should substitute for, and override, the mundane specific knowledge of others.” The intellectuals, as a class, tend to reject the first-hand knowledge of non-intellectuals as “prejudice” or “stereotypes.” Abstract formulas, adopted by the intelligentsia as dogma, are advanced as some kind of superior wisdom and used to undergird insane government policies that fly in the face of common sense. How else, indeed, has our Republic arrived at its present state?

Once established, the intellectual class continues to feed politicians and bureaucrats with ideas that point toward one solution: big government, interventionism, wealth redistribution, and other egalitarian absurdities. The country is pushed, inch by inch, toward an unnamed catastrophe. Who will name it? Who will stop the pushing? The intellectuals are feeding at the public trough, and they are entrenched. It seems that the rest of society is helpless to stop them.

To decry their push for “judicial activism” avails us nothing. If you stop them in the Supreme Court they will infect popular opinion and a new Congress will be elected. If they don’t elect Congress, they will elect a president. If they cannot act politically, they will take over the universities and bring out a generation of politically correct drones. Here we are not dealing with a particular set of abuses that can be fixed with appeals to democracy, Christianity, or legal reform. Here we are dealing with thousands of writers and professors who have, through some mysterious process, arisen from the lower depths, from the inner hell of a confused though fashionable relativism. The welfare state is their brainchild, and economic calamity is also theirs.

Civilization’s Wrecking Crew has been working overtime lately.

Obamacare

Rather than repeat myself, I refer you to these posts:

Rationing and Health Care
The Perils of Nannyism: The Case of Obamacare
More about the Perils of Obamacare
Health Care “Reform”: The Short of It

The Census of 2010: Bring It On

I’m waiting eagerly for the census form to arrive in the mail. Its arrival will give me an opportunity to comply with the “real” Constitution by committing an act of civil disobedience. Specifically, I will refuse to answer the questions that have nothing to do with the constitutional purpose of the census.

Yes, the Constitution mandates the census, for the purpose of apportioning membership in the House of Representatives among the States. And it says in the Constitution that “the actual Enumeration . . . shall be made . . . in such Manner as they shall by Law direct.” But the operative word is “enumeration.” It follows that Congress’s power to direct the “manner” of the enumeration is restricted to such matters as when and at what cost the enumeration shall be made.

In fact,  nine of the questions asked on this year’s ten-question census form are  extraneous to the constitutional purpose of determining the number of persons living in each State. It is telling that the “box” in which the constitutional purpose of the census is stated contains only question 1: “How many people were living or staying in this house, apartment, or mobile home on April 1, 2010?” The layout of the form indicates clearly that the other nine questions are unnecessary, not to mention intrusive; for example: Do you own or rent your home? Is it mortgaged? What’s your phone number, age, and date of birth? Are you Hispanic? What’s your race (since the abolition of slavery, relevant only to the exclusion of “Indians not taxed” from the enumeration)? Do you sometimes live or stay somewhere else, and why?

Worse than the basic census form is the American Community Survey (ACS), which is sent to a random sample of addresses. The survey redoubles the constitutional irrelevance and unwarranted intrusiveness of the basic census form by asking about such things as the characteristics of your dwelling (e.g., number of rooms, number of bathrooms, age of building, types of appliances), number of automobiles you own, cost and type of utilities you use, the estimated value of your home, your annual real-estate taxes, the amount of mortgage payment, your education, your type of employment and work status, etc., etc., etc.

According to the Census Bureau,

The 2010 Census will help communities receive more than $400 billion in federal funds each year for things like:

  • Hospitals
  • Job training centers
  • Schools
  • Senior centers
  • Bridges, tunnels and other-public works projects
  • Emergency services

The data collected by the census also help determine the number of seats your state has in the U.S. House of Representatives.

It is noteworthy that the constitutional purpose of the census is stated as an afterthought, whereas top billing is given to several unconstitutional purposes — none of which derives from the powers granted Congress in Article I, Section 8, of the Constitution. The fact that courts have upheld the constitutionality of extraneous, intrusive questions is no proof of their constitutionality. The real Constitution is what the Constitution says, not what some court says.

Nor is there a scintilla of a penumbra of a justification in the Constitution for the use of the census to satisfy the desire of social “scientists” to collect data from which they can derive unconstitutional policy prescriptions..Yet, the Census Bureau boldly proclaims the value of the census as a source of data for such endeavors by quoting one such “scientist”:

“For many sociologists and other scholars like me, the census data that is compiled every 10 years is flat-out the most reliable, comprehensive, and best source of data on the American population.”

– C.N. Le, Professor at University of Massachusetts, Amherst

In addition to the essential unconstitutionality of the census, as it is conducted, there is the potential for the misuse of the census by an administration that is determined to micromanage our lives, as the present administration is wont to do. (A primary case in point: “health care reform.”)

As if that weren’t enough, Hans A. von Spakovsky notes that a court in Delaware has ruled that “there is a separate violation for each question you don’t answer. So, on this year’s ten-question Census form, you could be fined as much $1,000″ — even though it is evident that the law (U.S. Code, Title 13, Section 221) contemplates a maximum fine of $100:

(a) Whoever, being over eighteen years of age refuses or willfully neglects, when requested by the Secretary, or by any other authorized officer or employee of the Department of Commerce or bureau or agency thereof acting under the instructions of the Secretary or authorized officer, to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title, applying to himself or to the family to which he belongs or is related, or to the farm or farms of which he or his family is the occupant, shall be fined not more than $100.

The operative phrase is “any of the questions,” meaning any or all of them. Otherwise, the phrase would read “a question.” But arrogant, statist judges — like arrogant, statist executives and legislators — have no respect for the Constitution or laws that threaten to curb their power-lust.

Nevertheless, as von Spakovsky observes,

If there was a mass refusal by millions of Americans to answer parts of the form — like the race question — the U.S. Justice Department would not have the resources to prosecute everyone who violated the law. But you could be prosecuted and fined . . . .

What’s a Constitution-abiding citizen to do? Aside from giving false answers, which is neither principled nor wise (the potential penalty is five times greater than the penalty for not answering), I see three options:

1. Don’t return the census form(s) and avoid the census-taker when he comes a-calling. If the census-taker happens to catch you at home, you can put him off by recording his ID and telling him to return at some future time, after you have had a chance to call the Regional Census Center to confirm his identity. (If the census-taker gives you a phone number to call, explain to him that it would be imprudent of you to rely on him to give you a valid number.) It might just happen that you forget to be home at the agreed time, or that you don’t hear the doorbell.

2. Answer question 1 and its equivalent on the ACS (if you receive it), and return the form(s). Respond to follow-up visits by the census taker as suggested in 1.

3. Answer question 1 and its equivalent on the ACS (if you receive it), and return the form(s) with an note explaining the constitutional basis for your refusal to answer the other questions. Undaunted, the census-taker will come a-calling, and you (equally undaunted) can deal with him as suggested above. Don’t argue; just avoid.

In the census of 2000, I received the long census form (the predecessor of the ACS), and chose to exercise option 3. The census-taker gave up, and I never heard from a prosecutor. I can’t guarantee the same outcome (for you or me) this time around. But I intend, once again, to resist the unconstitutional intrusion of Big Brother’s minions into my life. I urge you to join me in sending this message to Washington:

Get out of my home and out of my life!

UPDATE (05/10/10):

See this, this, and this for more about Census 2010.

The “Predator War” and Self-Defense

There is a body of opinion which holds that the use of new war-fighting technology is illegal and tantamount to murder. Those who hold that opinion have particular reference to the Predator drone, which the U.S. has used to some effect in the Middle East. The position of the nay-sayers permeates a New Yorker article by Jane Mayer, entitled “The Predator War.” By the standards of Mayer and the anti-predator critics upon whom she leans heavily, David (of “David and Goliath”) and the English longbowmen at Agincourt were war criminals, just because they used superior technology to defeat their enemies. This pseudo-legal nonsense is merely a pretext for anti-American Americans, and others, to find fault with the United States.

The correct view of this matter is taken by Kenneth Anderson here, here, here, and here. In the fourth-linked item, Anderson outlines the legal position that the U.S. government should take (but has not):

  • Targeted killings of terrorists, including by Predators and even when  the targets are American citizens, are a lawful practice;
  • Use of force is justified against terrorists anywhere they set up safe havens, including in states that cannot or will not prevent them;
  • These operations may be covert—and they are as justifiable when the CIA is tasked to carry them out secretly as when the military does so in open armed conflict.
  • All of the above fall within the traditional American legal view of “self-defense” in international law, and “vital national security interests” in U.S. domestic law.

Moreover,

The U.S. government should . . . defend what its officers in fact believe to be the case—that targeted killing from drone platforms is not merely a question of hard-edged military necessity, but is also a humanitarian step forward in technology. The president believes that and so does the vice president, and they are correct. These technologies are lessening, not increasing, civilian damage, are being applied in ways (because it is killing that is, indeed, targeted) that lessen collateral damage from what it would otherwise be in traditional war. The U.S. government should react with outrage to the charge, implied or express, of American cowardice or some abstract increased propensity to violence on account of drone strikes, and assert its humanitarian moral ground.

For that matter, hostile journalists ought to be pressed to explain why drone attacks are significantly different from missiles fired from aircraft or offshore naval vessels​—save for the vastly greater ability to monitor the circumstances of firing through sensor technologies. Senior officials believe that drone warfare allows the United States to take far greater measure and care with collateral damage than it can using either conventional war or attack teams on the ground. The U.S. government should say so, rather than simply falling back on narrow arguments of military necessity, operational convenience, and force protection, while ceding the moral high ground to the international soft-law community.

The Near-Victory of Communism

It is said, often, that communism failed, and that its failure was marked by the fall of the Berlin Wall and the collapse of the Soviet Union. Communism is in fact alive and as well as it ever was in the Soviet Union. Where? In the so-called Western democracies. In evidence, I quote from the Manifesto of the Communist Party (English edition of 1888):

[T]he first step in the revolution by the working class, is to raise the proletariat to the position of ruling as to win the battle of democracy.

The proletariat will use its political supremacy to wrest, by degrees, all capital from the bourgeoisie, to centralise all instruments of production in the hands of the State, i.e., of the proletariat organised as the ruling class; and to increase the total of productive forces as rapidly as possible.

Of course, in the beginning, this cannot be effected except by means of despotic inroads on the rights of property, and on the conditions of bourgeois production; by means of measures, therefore, which appear economically insufficient and untenable, but which, in the course of the movement, outstrip themselves, necessitate further inroads upon the old social order, and are unavoidable as a means of entirely revolutionising the mode of production.

These measures will of course be different in different countries.

Nevertheless in the most advanced countries, the following will be pretty generally applicable.

1. Abolition of property in land and application of all rents of land to public purposes.

2. A heavy progressive or graduated income tax.

3. Abolition of all right of inheritance.

4. Confiscation of the property of all emigrants and rebels.

5. Centralisation of credit in the hands of the State, by means of a national bank with State capital and an exclusive monopoly.

6. Centralisation of the means of communication and transport in the hands of the State.

7. Extension of factories and instruments of production owned by the State; the bringing into cultivation of waste-lands, and the improvement of the soil generally in accordance with a common plan.

8. Equal liability of all to labour. Establishment of industrial armies, especially for agriculture.

9. Combination of agriculture with manufacturing industries; gradual abolition of the distinction between town and country, by a more equable distribution of the population over the country.

10. Free education for all children in public schools. Abolition of children’s factory labour in its present form. Combination of education with industrial production, &c., &c.

So much of the agenda of Communism has been adopted by the “Western democracies” — through executive fiat, legislation, judicial decree, taxation, regulation, and nationalization — that I wonder why we bothered to wage and win the Cold War.