Defanging

Put away that gun, this part is simple

Try to recognize what is in your mind

God help us, help us lose our minds

These slippery people help us understand

What’s the matter with him? (He’s all right)

How do you know? (The Lord won’t mind)

        —Talking Heads, Slippery People

 

Just a little food for thought today.

Having successfully stalled on immigration so his party didn’t have to face the voters on the issue, President Obama is now locked and loaded to move forward with unilateral executive action on amnesty, bypassing a Congress that come January will be controlled by the largest Republican majority in some 60+ years.  It used to be that “elections have consequences,” but I guess that’s only true if you still believe the Constitution and its concepts of separation of powers and enumerated (read: expressly limited) powers still mean anything.

Article I is really pretty clear on this:

“The Congress shall have the Power . . . To establish an [sic] uniform Rule of Naturalization[.]”

To the extent that the authority to regulate the border is exclusively the province of the Federal government, that power is vested solely in Congress.  It appears nowhere in Article II, and thus is not among the powers granted to the President.  In the land of the New Imperial Presidency, where a Republican landslide gets spun as simply an electoral mandate to give Obama whatever he wants, however, it appears that things are going to work a little differently.

But an added development is a little chilling.

NBC’s Tuscon affiliate is reporting that the Office of Border Patrol Training and Development has been inspecting border agents’ M4 carbines (the modern version of the old M-16, the military version of what we civilians carry as the AR-15).  I’m all for training, and periodically inspecting the weapons deployed in the field to ensure they are in good working order seems like a reasonable practice, except there’s just one minor problem:

The agents aren’t getting their rifles back.

That’s right, when the DC boys come to inspect, many of these rifles are not being returned, nor are they being replaced.  Agents are left with so few rifles that they are forced to share from a common pool, meaning no one has a rifle with sights adjusted to their particulars.  And many of the rifles removed from service have only routine minor maintenance issues that frankly any competent armory ought to have sufficient parts in stock to accomplish the repair on site.  Yet the men and women charged with securing the border are being left without adequate firepower to do it effectively, let alone safely.

We face an unprecedented wave of illegals, encouraged by the Imperial President’s promises of amnesty.  Reports that nearly a half million were caught last year—begging the question how many weren’t—were cleverly suppressed until after the election.  Now the Emperor’s minions are systematically disarming your Border Patrol.  But let’s look at this in its broader context.

This is the same administration that deliberately furnished thousands of military grade weapons to Mexican drug gangs, then lied about it, and is now hiding from it.  This is the same administration that is militarizing non-security-related government branches such as the Department of Education, and the National Oceanic and Atmospheric Administration, purchasing thousands upon thousands of weapons and billions of rounds of ammunition.  And they can’t manage to find spare parts to get Border Patrol rifles back in service?

Obama and his Progressive hoardes have been trying to disarm you, the American Citizen, for years.  You no longer need guns for self-defense—not that that’s the valid Constitutional inquiry—they argue, because you have government security in the form of, among other things, the Border Patrol and Police.  Now they’re actually disarming the Border Patrol.  Meanwhile the likes of Eric Holder are stoking the embers of what will inevitably become an anti-police inferno in Ferguson, Missouri, thus effectively disarming the police nationwide, as they now face the Hobson’s choice of either not defending themselves, or being subject to politically-driven automatic murder indictments regardless of how legitimate the evidence shows their actions to have been.

Obama’s already gutted the military.  Now he’s rendering the Border Patrol and local police operationally impotent.  Which begs the question:

Who’s minding the gates to the castle?

Shutting Us Up (reprise)

German Officer:  What did you say to her? Would you kindly repeat it to me?

French Officer:  What I said is none of your business.

German Officer:  Then I will make it my business.

        —Hans Heinrich von Twardowski as the German Officer, and Alberto Morin as the French Officer in Casablanca

 

I want to follow up on a post from last month with a question:

When did we get so afraid of speech?

Attorneys for the City of Houston have subpoenaed local pastors for copies of sermons touching on the topics of homosexuality, gender identity (whatever that is), or Houston Mayor Annise Parker (who, not coincidentally, is openly lesbian).  At issue is a new city “anti-discrimination” ordinance aimed at a ludicrous level of politically-correct hyper-inclusiveness that, among other things, allows men to use women’s restrooms because they “feel like” women (I’ve previously dealt with the insanity of these kinds of laws here).  Apparently there is a lawsuit challenging the ordinance, filed after the city refused a referendum despite a petition collecting nearly triple the number of signatures necessary to place the measure on the ballot.

It is not my task here to debate the merits of the ordinance.  Nor is this about my views on gay rights, same-sex marriage, or even homosexuality in general.  This is about government bullying and censorship in the name of political correctness.

In Texas we allow broad discovery in litigation, even of non-parties, but the information sought must be at least reasonably calculated to lead to the discovery of evidence that would be admissible at trial.  To be admissible at trial, the evidence must have a tendency to make some fact of consequence to the determination of the matter more or less probable.  The pastors under subpoena are not parties to the lawsuit; they are neither the ones pressing the legal challenge to the ordinance, nor—obviously—are they the ones responsible for drafting or passing it.  It is difficult to see how anything one of them said from the pulpit makes any fact of consequence in deciding the ordinance’s validity more or less probable.  Curiously, the subpoenas don’t even appear to seek—or at least are not even limited to—sermons dealing with the anti-discrimination ordinance at issue.  Instead, they seek information on sermons dealing with homosexuality in general, or dealing with Mayor Parker personally.  Which begs the obvious question:

Why are the sermons being subpoenaed at all?

One suspects it has everything to do with the fact that the pastors being targeted have been vocal critics of the Parker administration and the anti-discrimination ordinance, which for obvious reasons has been something of a pet agenda item for her.  And that’s a serious problem.

The First Amendment reads in its entirety:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

By virtue of the Fourteenth Amendment and the incorporation doctrine, these guarantees restrict not only Congress, but also the States (and, by extension, local governments).  And the idea is pretty simple, really: people in the United States should be able to practice their religion and to speak out against the government without fear of government reprisal.  This concept is the very foundation of what our republic was supposed to be all about, and if you think about it, to the extent any of these pastors said anything having any bearing at all on the ordinance in question, they were engaging in First Amendment activity on multiple levels.  They were in church, exercising their religion. They were before their congregations, thus (presumably) peaceably assembled.  And not only were they engaging in speech, but they were engaging in speech articulating a grievance against the government.  With apologies to Larry Flynt, this is the very essence of what the First Amendment was designed to protect.

Yet their reward for speaking out is to be met by a phalanx of government lawyers, and heaven knows nothing good happens once lawyers start showing up.  All because those in power did not like what these people had to say.

The increasing weaponization of the mechanisms of government to intimidate opposition into silence is chilling, to say the least.  In the last century, dictatorships quashed dissent through the brute force of the KGB or the Stasi.  But state censorship of opposition doesn’t have to be so crude as midnight disappearances to the Gulags in order to be effective.  IRS denies or delays tax-exempt status for Tea Party groups, thus denuding them of the funding necessary to get their message out effectively.  Logan Clements produced a film critical of FUBARCare, and found himself immediately the subject of a tax audit.  The same Department of Justice that refused to prosecute the New Black Panthers when they were caught on tape intimidating voters brought felony campaign finance charges against Dinesh D’Souza after he released an anti-Obama film heading into the 2012 election season.

What do you suppose things like this do to the willingness of ordinary citizens to raise their voices and be heard?

In 2003 then-Senator Hillary Clinton famously squealed that she was “sick and tired” of people being labeled as unpatriotic when they dared to question the Bush administration.  These days, however, it’s not a question of dissenters being labeled unpatriotic, or even racist or homophobic (or maybe worst of all, “denier”).  We’re way past name-calling.  Now, anyone who might dare speak up has to wonder if they’re going to get a call from the IRS.  Or if a process server is going to knock on the door to invite them to a government-sponsored expose of every document in their file cabinet.  Or if they’re going to be arrested and threatened with five-to-ten in a federal penitentiary for jaywalking.

This is not how it’s supposed to be in this country.  We’re supposed to have active engagement by ordinary citizens in the issues of the day.  We’re supposed to disagree, and to be able to voice that disagreement, at times loudly.  As Michael Douglas said as President Andrew Shepard in The American President,

“America is advanced citizenship.  You gotta want it bad, ‘cause it’s gonna put up a fight. It’s gonna say, ‘You want free speech?  Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’”

But we seem to be losing that.  Fast.  Those whose hands grip the levers of power are so consumed with maintaining that grip that they now trod over the most fundamental tenets of our political society to ensure that they never even have to engage in (let alone win) the debate.  It’s becoming increasingly dangerous to speak.  Maybe not physically dangerous, and maybe not even dangerous in a go-to-jail sense—although one increasingly wonders—but it doesn’t have to be.  Just responding to a subpoena can be financially crippling to most, and there’s no insurance to cover it.  For many, the fiscal risk alone is more than they can chance.  Better to keep quiet and not attract the state’s attention.

If we don’t speak out now, if we don’t take that risk, who will be there to speak when they come to muzzle the last of us?

Trading Bad

“What I give them lasts a lifetime; what they give me lasts 142 games.  Sometimes it seems like a bad trade.  But bad trades are part of baseball.  Who can forget Frank Robinson for Milt Pappas, for God’s sake?”

        —Susan Sarandon as Annie Savoy in Bull Durham

 

I suppose these things happen.

In 1989 the Minnesota Vikings gave the Dallas Cowboys five players and six draft picks (including three #1 picks and three #2 picks) for an aging Herschel Walker and a couple of mid-late round draft picks that, other than receiver Jake Reed, didn’t turn into anyone you’ve ever heard of, and the Vikings haven’t even sniffed the Super Bowl since.  Dallas converted those picks into (among others) Hall-of-Famer Emmitt Smith, Pro Bowlers Darren Woodson and Russell Maryland, receiver Alvin Harper, and three Super Bowl wins in four years in the early-to-mid-1990s.

A lopsided deal, to be sure.  But as far as I know, nobody died in the process.

By now you’ve seen that the Obama Administration made a deal with the Taliban to exchange five jihadists from Guantanamo Bay for Army Sergeant Bowe Bergdahl, who had been held prisoner in Afghanistan and Pakistan since 2009.  On its face this doesn’t seem like a major issue, and one might even call it a victory any time we can secure the return of an American POW.  The U.S. government has on many occasions and under a number of administrations engaged in spy swaps and other forms of prisoner exchanges.

But this one struck me as different from the get-go, and as more facts emerge—and I confess we’re still pretty early in that process—the worse this thing looks.

To begin with—and maybe this is just my ignorance—I thought it a bit odd that the Taliban even had a U.S. prisoner to exchange.  I did not know they were in the business of keeping live American prisoners, and indeed it turns out that Sgt. Bergdahl was the only one they had.  Which in itself begs the question why they had him alive in the first place; what value was he to them?

Then there was the notion of the exchange rate.  I do not mean to imply that any human being is more or less valuable than any other, but in return for this single infantry sergeant the Obama administration gave up five reportedly senior Taliban officials and military leaders, including men with direct ties to al Qaeda and Osama bin Laden (don’t sweat that, because Obama got a pinky-promise from the government of Qatar that they’ll keep an eye on these guys for the next year, just to make sure they don’t revert to their more violent tendencies; you’ll forgive us, however, if we wonder if that’s as good as the one Obama gave Bart Stupak (D-MI)).  Not only is that effectively trading generals for foot soldiers, but it’s not even a 1:1 deal.  Of course, we’ve seen how Obama negotiates with anyone outside the GOP, so that isn’t particularly a surprise.

But I can excuse all of that.

What I can’t excuse are the details that are emerging about the apparent circumstances of Bergdahl’s “capture,” and the way the President went about making this deal.

All the facts are not in; the Pentagon says it will investigate the matter, and unlike the many other promises from this Administration that it will investigate this, that, or the other thing and hold those responsible accountable—see Benghazi, Fast & Furious, IRS, NSA, VA, etc.—this one I sort of believe.  But what appears to be coming clear is that Bergdahl was not an ordinary POW captured in combat.  Multiple reports from men in his unit—apparently until now suppressed by the Pentagon, undoubtedly at the direction of the White House—indicate that Bergdahl instead was a deserter who walked off his post and voluntarily into the hands of the Taliban (which might explain in part why he was in the unique position of being in Taliban hands alive).

That’s bad enough, and I understand that the military takes such a dim view of desertion that the penalties for such an action are, well, somewhat on the stiff side.  One could reasonably ask why you would give up anything in exchange for a deserter.  But what really should bother everyone about this is the fact that the U.S. military spent as much as 60 days trying to find and rescue Bergdahl, and as many as 14 U.S. soldiers died in the process.   Add to that the however many Americans killed in the process of capturing the five jihadists released from GITMO in order to get Bergdahl back.  By making this deal, the Obama administration has cheapened those sacrifices, if not nullified them entirely, all for what really amounts to a political smoke screen—since when does Obama give a crap about the military—aimed at distracting attention from the VA debacle (which was distracting attention from the Benghazi and IRS scandals, which were distracting attention from FUBARCare . . . ).

That ought to make you sick to your stomach.

Worse still, all of the nearly 3,000 Americans killed in Afghanistan—every one of them a volunteer, by the way—presumably died defending this country and the American way of life; a way of life that was supposed to be grounded in the rule of law and separation of powers guaranteed under the Constitution.  Say what you will about whether that’s what we’re accomplishing in Afghanistan from a policy standpoint—and it’s a fair complaint after twelve mostly rudderless years, and three years after the last plausibly legitimate objective was achieved—for people who volunteer to go there and serve, that’s what they believe they’re doing, and it’s why they’re doing it.  Yet, the Bergdahl trade represents yet another act in this Administration’s continuing imperial erosion of that concept.

Under the National Defense Authorization Act, the White House was obligated to give Congress 30 days’ advance notice before releasing any GITMO detainees.  Obama ignored this, and told no one in Congress ahead of time, except apparently Senate Majority Leader Harry Reid (D-NV), who claims he was notified just before it happened.  Even liberal Harvard law professors and Senator Dianne Feinstein (D-CA) acknowledge that this was a violation of the law.  The Obama Administration claims—depending on when you ask them—it could not give notice because Bergdahl’s health was deteriorating such that his life was in immediate danger and they could not risk a delay scuttling the deal, or that the Taliban was going to kill him; but video of Bergdahl’s release appears to show him in reasonably good health, and it’s unclear why he would have suddenly been in immediate danger after having been in captivity for five years.  At this point in this Administration, does anyone with a mind even bother listening to the explanation du jour?

Part of the problem here is that it turns out that an exchange of GITMO prisoners for Bergdahl had been under consideration as far back as 2011—in itself begging the question why the sudden urgency now—and Congress told the President no.  But the bigger issue is the underlying attitude of this Administration that if in its sole judgment circumstances warranted a more expedited approach, then the law passed by Congress and signed by him simply didn’t apply.  This President has such utter contempt for Congress, the Constitution, and the separation of powers, and views himself so above the law, that none of it matters.  This prisoner exchange, like so many actions by this lawless President, is totally at odds with the framework of freedom so many have died in that godforsaken hellhole to defend.   Left unchecked, it leaves us yet another step down the path of voiding the price those servicemen and servicewomen paid.

And that’s a bad trade, indeed.

Ask Not At Whom The Gun Points

 

“Mr. Ambassador, you have nearly a hundred naval vessels operating in the North Atlantic right now.  Your aircraft have dropped enough sonar buoys that a man could walk from Greenland to Iceland to Scotland without getting his feet wet.  Now, shall we dispense with the bull? . . . It would be wise for your government to consider that having your ships and ours, your aircraft and ours, in such proximity is *inherently* dangerous.  Wars have begun that way, Mr. Ambassador!”

       —Richard Jordan as National Security Advisor Jeffrey Pelt in The Hunt for Red October

 

March, 1770.  Large numbers of armed British troops have been occupying Boston for nearly two years.  The soldiers are not there to prevent some foreign force from harming those British citizens, but to enforce the Townshend Acts—a series of heavy taxes on imported goods—against them.  In other words, they are there as the muscle to make sure the people of Boston did what the King and Parliament in London said.

On March 5, a squad of these soldiers opens fire on a crowd during a confrontation outside the Old State House.  Five civilians are killed.  The event will later come to be known as the “Boston Massacre,” and it is among the flash points that will lead to the American Revolution.

It is also the almost inevitable result when a tyrannical central government turns its military against its own citizenry in an attempt to impose its will by force.

July 2, 2008.  Then-Senator Barack Obama, campaigning for the Presidency, gives a speech in Colorado Springs in which he called for a “civilian national security force” on the same scale as the U.S. military:

“We cannot continue to rely only on our military in order to achieve the national security objectives that we’ve set.  We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well-funded.”

Come again?

[As an aside, this statement alone should have illustrated that the man is completely ignorant or an idiot.  At that time, the U.S. military employed about 2.5 million people in and out of uniform, and was spending at a clip of over $700 billion a year, some 20% of the entire budget, and multiples above what the rest of the world, including our allies, spends combined.  And he was proposing to create out of thin air a second organization “just as powerful,” and “just as well-funded.”]

But back to the subject, just what is a “civilian national security force,” and what is its mission?  Is it to defend the U.S. against foreign threats?  Is it to project power and protect U.S. interests abroad?  Ask yourself these questions in light of Obama’s 2008 comments as you consider the following.

May 30, 2014.  We have previously covered the fact that over the last couple of years non-military branches of the federal government have been stockpiling billions of rounds of ammunition, military-grade weaponry, armored vehicles, and bullet-proof portable checkpoint facilities.  You could almost make the case for a small amount of that at DHS, which at least has a counter-terrorism function.  But why are huge amounts of guns and ammo being gathered at the Social Security Administration, or at the National Oceanic and Atmospheric Administration?  Why are S.W.A.T. teams—yes, I said S.W.A.T. teams—being formed at federal agencies like:

  • Department of Agriculture
  • Department of Education
  • U.S. Fish & Wildlife Service
  • Tennessee Valley Authority
  • Office of Personnel Management

Your government is stationing armed troops among us, right under our noses.  Against whom are these non-military agencies being mobilized?  It can’t be against some external threat, because that’s already the function of the existing U.S. military that’s so under-utilized it’s being downsized.  That leaves only one alternative:  they’re being mobilized against us.

Why?

Draw your own conclusions, but I’ll make a few observations:

The Social Security Administration handles a gigantic pool of money, and while at least theoretically in IOU form that pool is currently earmarked for distribution back to the people who contributed it, what would happen if the government unilaterally decided to renege on those IOUs?

The Tennessee Valley Authority provides electricity for most of the Southeastern U.S.  What would happen if it closed its 11 coal-fired power plants, thus unemploying a huge number of coal workers, and likely resulting in the rationing of electricity?

The Department of Education is poised via Common Core to nationalize the U.S. education system.  What would happen if someone didn’t want to be, um, “educated”?

The Department of Agriculture and the Fish & Wildlife Service are heavily involved in the promotion of biofuels and regulation of endangered species.  Both efforts involve the potential seizure of vast swaths of land in the name of ensuring sufficient ethanol feedstocks or preserving this, that, or the other critter.

The Office of Personnel Management has, among its tasks, responsibility for conducting background investigations for background checks.  In other words, they’re in the business of collecting information about U.S. citizens.

NOAA has satellites, boats, and airplanes.

And with the exception of TVA (and even that’s federally-owned), the common thread running through all of these agencies is they are under the direct control of the Executive Branch, headed by people appointed directly by the White House.

Rusty, that’s crackpot conspiracy-theory nonsense.

Maybe so, but then I challenge you to come up with a legitimate benign alternative explanation.  And even if it is, let me add another piece of the puzzle.

In 2010, the Obama Administration issued DOD Directive 3025.18 (updated September 2012), Defense Support of Civil Authorities, authorizing the deployment of U.S. military assets to respond to domestic situations, including troops engaging in the use of force.  The document itself actually has its roots in the 1950s, and at its core is a reasonable defensive-preparedness tool.  The current iteration of the directive authorizes federal military intervention on U.S. soil “when necessary to protect Federal property or functions.”  That in itself is pretty vague and open to a wildly broad interpretation.  But it gets worse.

In addition to authorizing the deployment of troops, the 2010 document also authorizes the loaning out of military assets, including weapons, ammunition, vessels, and aircraft, to requesting agencies.  Prior to 2010 I can’t find any reference to the loaning out of military hardware.  Moreover, while the predecessors to the 2010 directive spoke in terms of providing assistance to “civil authorities”—i.e., state and local governments—as best I can tell the 2010 document for the first time expands the universe of those who can request combat assistance to “qualifying groups,” which means non-governmental bodies as determined by the Secretary of Defense.  In other words, under the guise of protecting federal property or “functions,” or otherwise where it is determined safety or security support is needed, the U.S. military and its assets are now subject to being deployed or loaned out on U.S. soil to anyone Chuck Hagel (or whomever Obama appoints) says.

Imagine the Sierra Club—or the DNC—being able to requisition a combat division, or at least borrow a few thousand military-grade rifles and a couple million rounds of ammo.

Your real military is being gutted, while Obama and his ilk do everything they can to disarm you.  Meanwhile unaccountable tentacles of the Executive Branch are arming themselves, and what’s left of the military is being authorized to deploy domestically at the behest of non-governmental entities.  The federal government is spending more time and effort preparing to defend itself than defending the borders against foreign invasion; it’s easier for a Guatemalan kid to get into Texas from Mexico than it is for a U.S. Marine.  It deploys all kinds of assets to rescue kidnapped Nigerians or find disappearing Malaysian airplanes, and it falls all over itself to feed and house illegals; but it can’t be troubled to lift a finger to rescue embattled Americans in Libya, or to free Americans or their spouses imprisoned for apostasy by Islamo-fascists in Iran or Sudan.  It cries bloody murder when an American has the temerity to expose the fact that it’s spying on ordinary citizens, yet broadcasts its schedule for withdrawing from Iraq and Afghanistan to the world.   Everyone on earth is entitled to the protection of the U.S. government except Americans.

Pogo cartoonist Walt Kelly made famous the statement “We have met the enemy, and he is us.”

Indeed.

The Coming Enviro-Nazi Revolution

You don’t need a weatherman

To know which way the wind blows

          —Bob Dylan, Subterranean Homesick Blues

 

Before I get into today’s material, let’s refresh our recollection on a couple of pertinent provisions of the Constitution (you know, that silly little document that’s only the supreme law of the land).

Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States[.]

Article II, Section 2:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur[.]

Pretty straightforward.  Congress and Congress alone has the power to make laws.  And any treaty—an international agreement or compact, according to Black’s Law Dictionary—requires the approval of two-thirds of the Senate.

Those are the rules by which we’re supposed to be playing in this country.

With those in mind let’s look at today’s catalyst.  Fox News reports that the United Nations Environment Program (UNEP) is launching a new initiative to expand its role in driving a global “green” agenda.  Albeit couched in vague and often sweepingly meaningless language, the purported scope of this initiative is vast, and the level of hubris (ignorance?) it displays is mind-boggling.  Witness this example from its statement of objective on disasters and conflicts:

“11.8  Disasters and conflicts.  As a part of United Nations system-wide strategies for natural and man-made disaster risk reduction and preparedness, crisis response and recovery, UNEP will build national capacity to use sustainable natural resource and environmental management to: (a) reduce the risk of natural and man-made disasters[.]”

Really?  The U.N. is going to reduce the risk of natural disasters?  You mean somewhere amidst the champagne, caviar, and hookers they figured out how to stop earthquakes?

Glory be.

More seriously (because I don’t normally take the U.N. all that seriously (can’t think why)), I want to focus on a specific piece of the UNEP initiative that I find particularly disturbing.  One of the explicit objectives is to expand the U.N.’s role in pushing its view of the “green” agenda via the legal process.  In other words, the U.N. wants a say in the creation and enforcement of law at the national level.  Consider the following “Indicators of achievement” regarding UNEP’s program of “Environmental Governance”:

“Increase in the number of legal and institutional measures taken by countries to enforce the rule of law and improve implementation of internationally agreed environmental objectives and goals, with the assistance of UNEP.”

“Increase in the number of countries that undertake a review of, and adopt recommendations for, enhanced compliance with, and enforcement of, international environmental obligations[.]”

“Increase in the number of initiatives and partnerships of major groups and stakeholders in support of the development and implementation of national and international environmental law, with the assistance of UNEP.”

UNEP wants to work to increase the number of (a) legal measures countries take to enforce the rule of law, (b) countries that adopt UNEP’s recommendations for compliance and enforcement of international environmental rules, and (c) initiatives in support of the development and implementation of national environmental law.  And all this flows directly from UNEP’s express strategy “to support coherent international decision-making processes on the environment, support development and implementation of environmental law, norms, and standards[.]”

In the U.S., as I have discussed at least here, here, here, here, and here,  we already have a serious problem with an arguably unconstitutional and undeniably unaccountable EPA running out of control.  But think about the implications of an unholy marriage of EPA and the U.N. in light of UNEP’s stated strategy.  And if you think it can’t happen, I have to tell you that we are in fact already heading down that path.

In 2011, EPA entered into a “Memorandum of Understanding” with UNEP reciting their intent to cooperate on matters of environmental policies.  Although it includes disclaimers that it is not intended to create law and does not constitute a binding agreement, this document smacks of an international treaty, yet as far as I know the Senate has never passed on it as required under our Constitution.

But it gets worse.

Among the areas where EPA has agreed to cooperate with UNEP is “the development, implementation, and enforcement of environmental laws.”  EPA itself wasn’t supposed to be developing any laws in the first place; that is a power delegated to the Congress.  Yet under the guise of “regulations”—which get enforced, including criminal penalties, just the same as “laws” in the form of statutes passed by Congress—EPA has in practical fact been legislating for decades.  Now we have EPA agreeing to cooperate with UNEP in that practice, thus inviting U.N. participation in the creation of U.S. law, entirely bypassing Congress in the process.

If you thought taxation without representation was bad, try legislation—read: governance—without representation.

Possibly more sinister, buried in the details of this “cooperation” in the development of environmental law is a little thing called the “Global Judges Program.”  Uh oh.  This program under UNEP’s Division of Environmental Law and Conventions is explicitly aimed at conscripting the international judiciary to advance the “green” agenda on behalf of the U.N.:

“The goal of this programme of work is for DELC to carry out, on a cohesive, structured and sustained basis, national activities . . . for strengthening the role of the judiciary in securing environmental governance, adherence to the rule of law and the effective implementation of national environmental policies, laws and regulations including the national level implementation of multilateral environmental agreements.”  (emphasis mine)

The problem, of course, is that the international community in general, and the U.N. in particular, have a verrrry different view of the proper role of the judiciary and what “rule of law” means than has traditionally been the view in the U.S.  Outside of radical Progressive circles, the proper function of a judge in the U.S. at least used to be seen as being to apply the law as written by the appropriate legislative body.  That’s it.  And by “rule of law” we meant that the judge is to discharge this function dispassionately and objectively without regard for who the parties before the bar are, or what the “desired” outcome might be—the law is what it is, and the outcome it generates also is what it is.

For Progressives in the U.N. and EPA, however, the role of judges is to advance agendas by creating policy and law via judicial decree.  “Rule of law” is whatever a given judge says it is at any given time.  Now the U.N. wants an active role in pushing U.S. federal judges to serve in exactly this manner, creating and enforcing law in accordance with the U.N.’s “green” worldview, and EPA has agreed to cooperate in helping them achieve this.

This is a serious issue.  You don’t elect anyone at the U.N., and it operates outside the limitations of the U.S. Constitution.  Ditto EPA.  You don’t even elect federal judges.  Yet this combination of unelected and almost completely unaccountable powers is moving to create laws binding on you, and that will affect you and your very livelihood.

The U.N. was never intended as a government (at least not out loud).  It was intended as a forum for discussion and resolution of disputes without resort to world war.  But it is increasingly assuming the powers of a global government under the guise of environmental protection, and this is what’s really at the heart of the bullcrap global cooling/global warming/climate change/climate disruption hoax.  “Protection of the environment” can then be used as a justification for inserting government and law into any aspect of existence, and with the U.N. already controlling most of the “scientific” message on environmental issues, any resistance can conveniently be labeled “deniers” of “settled science”—an oxymoron in itself—and brushed aside like yesterday’s newspaper.

If we cede that sort of sovereignty, it’s over.

Your Liberty Is Being Decreed Away

“I don’t want to sell anything, buy anything, or process anything as a career.  I don’t want to sell anything bought or processed, or buy anything sold or processed, or process anything sold, bought, or processed, or repair anything sold, bought, or processed.  You know, as a career, I don’t want to do that.”

      —John Cusack as Lloyd Dobler in Say Anything

 

Somebody has to put a stop to this.

On Thursday, the President purported to bail out Congressional Democrats drowning in a tsunami of outrage over millions of people losing their medical care insurance due to the minimum coverage requirements of FUBARCare.  Following up on a proposal discussed in the last post, Obama made an executive decree authorizing the continued sale of discontinued policies made illegal under the law.

The trouble is the Democrats, having created the problem in the first place, can’t fix it by reinstating the plans.  They don’t have the constitutional authority to do so, and their insistence on doing it anyway is frightening.

They can’t do it via legislation, as we discussed Senator Mary Landrieu (D-LA) pushing.  The one thing Chief Justice John Roberts got right in his majority opinion in National Federation of Independent Business v. Sebelius was that the Commerce Clause does not give Congress the power to compel economic activity.  Because of that, it could not be used as a constitutional basis for upholding the individual mandate.  Senator Landrieu’s proposal simply amounts to an insurance company mandate, and the same analysis would apply.

I suppose one could argue that an insurance company mandate could be supported like the individual mandate was by enforcing it via a tax—Roberts was still wrong on that, by the way—but as a practical matter I don’t see how you would make that work.  It’s one thing to require individuals each of whom has to file their own tax return to submit proof of insurance with the return or have to pay their individual penalty.  But how do you enforce a tax on an insurance company to compel the reinstatement of hundreds of thousands of canceled policies?  How would you even compute such a tax, particularly when some people may have made other arrangements and don’t renew?  And there remain the disastrous long-term economic effects of compelling reinstatement, which we touched on in the last post.

Nor can the President do it.  Like Congress, he doesn’t have the authority to compel economic activity; the Commerce Clause doesn’t even apply to the President.  But he avoided that by not going as far as requiring insurance companies to reinstate policies, only decreeing that they would be permitted to continue selling policies that do not meet the statutory minimum coverage requirements.  He calls it “enforcement discretion,” and it is a power that doesn’t exist under the Constitution.  Scour Article II—you will not find it. 

Once again, we see this President unilaterally amending legislation—legislation he signed into law—creating a line-item veto by executive fiat, a power he simply does not have.  The President is only empowered to execute—that’s what an “executive” is—the laws passed by Congress.  He is not empowered to edit them, nor is he empowered to pick and choose which laws he will execute and which he will not.  One wonders where all those Democrats who little more than a month ago were shrieking at Ted Cruz that “It’s the law of the land!” are now. Thursday’s announcement and whatever order or communication that will go out to implement it are absolutely and unequivocally unconstitutional.

Notice a couple of things about the President’s “fix.”  One, it doesn’t lift the minimum coverage requirements; it only says that the penalties won’t be enforced.  It will remain illegal to have such a policy, and it will remain illegal to sell such a policy.  I don’t know about you, but I don’t know how comfortable I’d be holding or selling an illegal policy based on this President’s (unconstitutional) assurance—revocable at any time at his whim—that I won’t be punished for it.

Two, this “amnesty” plan is only good through 2014, once again conveniently pushing the issue off just long enough to get them through yet another election cycle.  And it likely does little for the millions who have already had their policies terminated.  Like everything else with this President, it’s a substance-less veneer; a cynical mirror hastily erected to divert your attention from the bigger issue.

And that bigger issue resides in the underlying thought process reflected in FUBARCare and the most recent band-aid.  Under FUBARCare, Congress took upon itself the power to compel individual private citizens to purchase a product regardless of whether they wanted it or could afford to pay for it, under penalty of law.  Let’s stop there for a moment; where does that end?  If Congress can make you buy medical care insurance, can’t it through the identical mechanism make you buy any other product or service it chooses to favor with an artificial compulsory market?  Suppose the UAW goes to Congress and says “We need more people buying cars”—what’s to stop Congress from enacting an individual automobile purchase mandate requiring every person over the age of 26 to buy a new car every three years or face a $15,000 fine, er, tax (with, of course, the appropriate federal subsidies, etc.)?

Pressing on, we see that the proposed solutions to the policy cancellation issue simply flip the analytical equation that led to FUBARCare in the first place.  Having compelled people to buy the product, the Progressives’ instinctive fix for the cancellations was then to compel people to sell the product.  True enough, Obama’s illegal exercise of fiat has—for now—stopped just short of compelling private insurance companies to sell the old policies, but compulsory sales was in fact the concept behind Senator Landrieu’s legislative proposal.  She wanted to force insurance companies to continue to sell policies they would otherwise cancel, and do so even at a loss.

Just like compulsory buying, this compulsory sale idea is subject to logical extension, and the place it leads isn’t pretty.  If government—whether via legislation or executive order—can compel a private insurance company to sell a policy, then it can compel any other private enterprise to sell a product, again even at a loss.  And if it can compel a private corporation to sell a product, it can compel any organization to sell a service.  And if it can compel a private organization—a private group of people—to sell a service, then it can compel a private individual to sell a service—force him to work—and again, to do so even at a loss.

Rusty, that’s crazy.  No one would ever suggest the government force individuals to provide a service against their will.

Really?  Well there are Progressives already openly campaigning on the premise that government should force doctors to accept Medicare and Medicaid patients—force them to provide a service—even if those doctors can’t break even under those programs’ payment structures.  It’s not far from there to say that doctors have to accept all patients, regardless of who they are or whether they can pay at all.  And if they can do it to doctors, well guess what, Sport . . .

It’s called a “command economy,” and it’s a hallmark of totalitarian communism.  Once government controls both sides of the transactional equation, once it acquires the power to compel both the purchaser to buy and the seller to sell, then all freedom is lost.  There is no private property, because both your money and your goods are subject to being forcibly exchanged in compulsory transactions; they belong to the government, to be disposed of as it sees fit for the collective good.  There is no liberty, because your labor—your fundamental control over yourself—is subject to being forcibly devoted to the service of someone else, whether you receive adequate compensation in return, or even any compensation at all; it likewise belongs to the government, to be disposed of as it sees fit for the collective good.  We all become slaves, each chained to the other, with the whip hand belonging to the Progressive ruling elite.

The Constitution was meant to protect you from this.  And it’s being openly, contemptuously ignored, with hardly a word in protest.  Once this genie is out of the bottle, friends, there ain’t no going back.  Write and call your Representative and your Senators; tell them they have to speak out and take action in defense of the Constitution.

We have to stop this now.  If it’s not already too late.

Counting Diminishing Blessings

Nuke:              How come you don’t like me?

Crash:            Because you don’t respect yourself, which is your problem.  But you don’t respect the game, and that’s my problem.  You got a gift.

Nuke:              I got a what?

Crash:            You got a gift.  When you were a baby, the gods reached down and turned your right arm into a thunderbolt.  You got a Hall-of-Fame arm, but you’re pissing it away.

           —Tim Robbins as Ebby Calvin “Nuke” LaLoosh, and Kevin Costner as “Crash” Davis in Bull Durham

Are you comfortable?

Do you have enough to eat without having to scratch your subsistence out of the dust?  Are you able to read at night by virtue of fixtures and appliances powered by electricity available to you at the flip of a switch?  Can you travel essentially anywhere, using a privately-owned vehicle that can transport you safely and quickly over distances of hundreds of miles in a day?  Are you earning an income by working for an organization that produces goods people want or need (or for an entity that provides valuable services to such organizations)?

I’ll wager that the answer to every one of those questions is Yes.  But chances are you have rarely, if ever, considered the root source of those blessings.

That you enjoy the comforts of living in the most wealthy society in the history of man is not an accident.  Your abundance, your modern conveniences, your economic prosperity (yes, prosperity, even given the extended recession) are all fruits of a harvest sown by the seeds planted for us by the founding generation.  The freedom of self-governance and self-determination they left us is directly responsible for the development of the United States into an economic and industrial power; and regardless of your relative station in life here, you are far better off for it than you would have been otherwise.

It is the single greatest gift any human being has ever bestowed on another.

Consider for a moment the price your ancestors paid to give you that gift.  With no money, no training, no experience, no supplies, and few weapons to speak of, they dared to take on the most powerful professional military force the world had ever seen up to that time.  They left everything, and risked everything.  They suffered through Northeastern winters with essentially no shelter, and inadequate clothing.  They ate their shoes.  And their dogs.  25,000 of them died, representing a loss of 1% of the total population at the time;  to put that in perspective, if we had to fight that fight today, we’d see 3.2 million dead—1,095 casualties every single day for eight years—more than double all the American dead in all the wars we have ever fought combined.

Why did they do this?  What possessed them to seek a forcible divorce from Britain, and embark on so radical an experiment at such great cost?  Well, we don’t have to wonder about that, because in the Declaration of Independence they told all the world for all time why they did what they did.  But look at some of their specific complaints and consider whether we are faithfully preserving that which they left us.

As Jefferson put it, the colonists’ core issue was “a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism . . .”  “Despotism” is the abuse of government through the consolidation of unlimited sovereign power in the hands of one man.  Hmmmm.  And Jefferson listed specific examples of this trend of despotic behavior on the part of the British monarch and his minions; see if any look familiar. 

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them . . . taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments . . . suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.  You mean like a President effectively amending or repealing legislation such as FUBARCare, the CLASS Act, the Defense of Marriage Act, or the Immigration Reform and Control Act through unilateral executive orders and refusals to enforce all or parts of the laws as enacted by Congress, and imposing burdens on States over their objection?  You mean like repeatedly suing States to stop enforcement of State laws on matters such as border security?

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.  How about a President engaging in endless governance-by-crisis, marked by perpetual stalemates born of his absolute refusal to negotiate so much as a single comma on anything?  How about habitually summoning legislators to his mansion to be lectured like so many unruly schoolchildren?

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.  You mean like EPA?  OSHA?  IRS?  NSA?

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.  Would that we had the Army amongst us.  Instead we have the NSA tapping our phones and reading our emails, while a heavily armed DHS patrols our streets in armored vehicles and “monitors” Tea Party rallies.

He has affected to render the Military independent of and superior to the Civil power.  We have the opposite: a President who has affected to render the military impotent and wholly subject to him and his ideology, while all dissent is purged.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation.  Have you met the U.N.?

[P]rotecting [troops], by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States.  The present administration has gone to great lengths to ensure that no one in it is held accountable for anything, ever.  Eric Holder in Fast & Furious.  Hillary Clinton and Susan Rice in Benghazi.  Lois Lerner in the IRS targeting episode.  Kathleen Sebelius with FUBARCare.  The White House always runs its own “investigation,” inevitably concluding that there was no wrong doing.  Nothing to see here.  Move along, Citizen.

[I]mposing Taxes on us without our Consent.  FUBARCare’s individual mandate penalty is a tax, when this President told us there wouldn’t be any new tax in it.  “Stimulus” and “Quantitative Easing” are stealth taxes in that they devalue the money you have, such that while you have the same number of dollars, you can’t buy as much with them today as you could yesterday.

He has excited domestic insurrections amongst us[.] This President is an endless font of race-baiting and class-warfare mongering.  He was a vocal supporter of the Occupy movement.  Divide and conquer

So many of the founding generation’s specific complaints enumerated in the Declaration find close parallels today, which means we’re slipping back into the very situation the Revolution was fought to eliminate.  How cheaply are we giving back that which they paid so dearly to leave to us?  Perhaps it’s come to us too easily; perhaps if we’d had to pay some of the cost to earn the freedoms we were bequeathed, we’d be more reluctant to see them taken from us.

We would do well to remember that we do not hold clear title; we are but life tenants, holding those freedoms in trust for the future generations that own the remainder.

I’m With Stupid

If you’re gone, baby it’s time to come home

There’s an awful lot of breathing room

But I can hardly move

            —Matchbox Twenty, If You’re Gone

 

A couple of weeks ago I was traveling on business, and while scrolling the TV channels in my hotel room I had the misfortune of the remote getting stuck briefly on what I gather was a “reality” show featuring the Kardashians—who for my life I can’t figure out why they’re famous or what about them merits anyone’s attention.  Two of them were in the kitchen, where one was preparing some sort of dish in which she was going to eat her own placenta.  That is not a typo, and I didn’t even make it up.  And for the record:  Ew.

But more seriously, this is the sort of garbage with which people are filling their minds?  And calling it “entertainment”?

It got me thinking that this is a real reflection of the root of what is so wrong with this country today.  Consider that among the top rated television programs today, those that aren’t football consist of offerings like The Big Bang Theory—which centers on a bunch of adults who are still obsessed with comic books, fantasy, and video games—and Modern Family—essentially an LGBT propaganda device.  Mix in juvenile remakes of The Odd Couple (Two and a Half Men) and Laverne & Shirley (Two Broke Girls), a half-dozen or so iterations of “talent” shows featuring performers of wildly varying degrees of actual ability, and a few versions of mindless and over-sexed “reality” de-selection shows like Survivor and The Bachelor, and you’ve got the bulk of today’s primetime bill of fare.

I lost 25 IQ points just typing that last paragraph.

It says a great deal when a current ad for the new Playstation 4 video game system features not adolescents, but unkempt twenty-somethings sitting in the wasteland of what had been their video game battleground, eating Taco Bell and taunting their friends for not having bought their new systems in time to arrive before the battle was over.  In other words, instead of pitching their latest toy by showing children in their living room playing a game, Sony features ostensible adults living in a fantasy land (a fantasy land, by the way, in which no one ever suffers any consequences, and even if you die you just go back to the last place you started).  And they do this for good reason: that’s who their market is.

The problem is, these people who spend their adult time watching the Kardashian sisters and playing video games also vote.  And one fears that a growing portion of the voting age population knows more about World of Warcraft than about the Constitution.  Unfortunately, there is evidence to support that fear.

Last year, U.S. News reported on an Xavier University study that showed over a third of American citizens failed the civics portion of the immigrant naturalization test (97% of immigrant citizenship applicants pass).  Among the lowlights: 

  • 85% could not define “the rule of law”
  • 75% did not know the function of the judicial branch
  • 71% could not identify the Constitution as “the supreme law of the land”
  • 63% could not name even one of their State’s Senators
  • 62% could not identify the Speaker of the House
  • 62% could not identify their State’s Governor
  • 57% could not define “amendment”

And the Xavier study isn’t an aberration.  In a 2008 survey by the Intercollegiate Studies Institute—repeating their results from two previous studies—71% of Americans failed a basic multiple choice test of American history, civics, and economics; the average score was a 49 (I scored a 94, for those who are wondering).  Those with a college education fared no better than those without.  Again in summary: 

  • Less than half could name the three branches of government
  • Only 21% knew that the phrase “government of the people, by the people, and for the people” comes from Lincoln’s Gettysburg Address
  • Only 53% knew that the power to declare war resides with Congress; 40% thought it belonged to the President
  • 27% knew that the Bill of Rights expressly prohibits the establishment of an official national religion
  • Less than 20% knew that the phrase “a wall of separation” between church and state comes from a letter written by Thomas Jefferson; almost half believe—incorrectly—that it can be found in the Constitution.

More and more, the people of this country know less and less about where America came from, the idea of self-governance upon which it was originally based, or the rules framework under which it was supposed to operate.  They don’t know what their rights are, what the source of those rights is, or what mechanisms the Founders established to protect them. 

Or why. 

But they damn sure know who’s in the finals of American Idol.  They know the rules of Survivor.  They can identify Miley Cyrus’ tongue (or whatever body part she’s most recently put on display).  They know how many days Lindsay Lohan spent in jail and rehab last month.  

Look, I understand that the whole population can’t be made up of Rhodes Scholars.  But you can’t expect a democratic republic to function when so many in the voting base that directs it have so little grasp of—or even know they have a personal stake in—how it works.  When people know (and care) more about who is sleeping with whom in Hollywood than they do about, say, Solyndra or Benghazi, they can’t possibly make informed decisions in the voting booth; that is particularly true when they also have no concept of the fact that of those three, two actually affect them and one does not.

But that’s where we are now.  People get more of their information about the world from their Twitter feed and vulgar comedians than they do from actual news sources (in fairness, that’s in part because there are virtually no real news sources left).  That’s why you have a President who spends more time acting hip and cool on Comedy Central, The View, and Letterman than he does answering substantive questions at press conferences, and yet still manages to get re-elected despite his objective record of abject failure.

As a sovereign people, we have abdicated the throne in favor of the boob tube.  The sad truth is too many of us have become too lazy to inform ourselves about what’s going on around us, especially with respect to what people in the District—people who are supposed to work for us, not rule over us—are actually doing.  And too many of us have become too soft or too fearful to engage in the critical thinking necessary for self-governance.  We’re much more interested in bathroom humor and sophomoric sexual innuendoes than in understanding our basic freedoms.  We prefer to experience the repeated death of a fantasy character in a fantasy world over learning about real world current events that affect our real lives. 

Apparently some of us will even watch an overweight moron devour her own afterbirth rather than pick up a copy of the Constitution. 

Speaking in a slightly different context, future President Ronald Reagan warned us in 1961:

“[I]f we lose that war, and in so doing lose this way of freedom of ours, history will record with the greatest astonishment that those who had the most to lose did the least to prevent its happening.  Well, I think it’s time we ask ourselves if we still know the freedoms that were intended for us by the Founding Fathers . . . If we lose freedom here, there’s no place to escape to.  This is the last stand on earth . . . We’ll preserve for our children this, the last best hope of man on earth, or we’ll sentence them to take the last step into a thousand years of darkness.”

I fear we may be at that point, dragged into the abyss by the albatross of stupidity and willful ignorance hanging about our collective neck.

Civics 201: What Might Have Been

“Oh, Brad!  Brad, my darling, how could I have done this to you?  Oh, if only we hadn’t made this journey.  If only the car hadn’t broken down.  If only we were amongst friends . . . or sane persons.  Oh, Brad, what have they done with him?”

            —Susan Sarandon as Janet Weiss in The Rocky Horror Picture Show

 

God bless my junior Senator, Ted Cruz, for being one of the very few in the Senate GOP contingent with the stones to stand up and try.  I have no idea what John Cornyn—who is all over his website and social media saying he supports defunding Obamacare—is doing leading the effort to stop him.  Voting for cloture and ending Cruz’s filibuster—which requires 60 votes Harry Reid doesn’t have without Cornyn’s help—only allows the Democrats to get to a vote on an amendment adding the funding back in, where Cornyn knows full well Reid does have the 51 votes he needs even over Cornyn’s objection; Cornyn’s Nay at that point is a hollow gesture, and for my life I don’t understand why Cornyn and the GOP establishment in the Senate would be so willing to cast down the only weapon they have left and quit the field.

But looking at the split between my State’s two Senators got me thinking: but for a grossly unfortunate Constitutional turn a century ago, we might well be in a different position today.  So I wanted to backtrack and cover a little history and civics.

Recall that the attendees at the Constitutional Convention in 1787 were not sent as at-large representatives of the population.  They were sent as delegations selected by their respective State legislatures, and their specific task was to represent those States as independent sovereign entities.  Indeed, one of the primary sticking points in the Constitutional debates was how these States, particularly smaller ones, would be able to protect their sovereignty once power was ceded to a central federal government.

The Framers’ solution, in their wisdom, was to create a bicameral legislature; two houses, with the Senate being the chamber in which the States, as States, would be represented.  As James Madison explained in Federalist No. 10:

“The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate[.]”

Thus, Article I as originally written provided that the Senate would be comprised of two Senators from each State, “chosen by the Legislature thereof.”   This gave each State as an independent sovereign equal representation within the federal government, embodied in members selected by, and ultimately responsible to, the governments of those States.  That was to be the safeguard of the States’ sovereignty and their retained powers under the 10th Amendment.  That, ultimately, is what federalism is.

But a funny thing happened on the way to Utopia.

Progressives recognized that this structure posed a barrier to the imposition of their agenda.  Wouldn’t it be simpler if they could bypass the buffer of the State legislatures so they could use their populist rhetoric to elect Senators directly by popular vote?  So in 1913 they pushed through the 17th Amendment, which substituted at-large elections in place of the selection of Senators by the State legislatures, and with it eliminated any responsiveness the Senate had to the States as sovereigns.  The entire point of a bicameral Congress was defeated.

So what does this have to do with Obamacare and Ted Cruz?

At 7:05 a.m. on Christmas Eve 2009, the Senate passed a 2,000+ page bill none of them had read by a vote of 60-39; that bill would become Obamacare.  That fact might seem of little importance by itself.  But shortly after the President signed the bill into law in 2010, several States sued the federal government to stop its implementation.  By January 2011, the number of States that had joined those lawsuits or filed their own had grown to 27.  Interestingly, of those 27 States suing the federal government to stop Obamacare, 15 of them had at least one of their Senators vote Aye back in 2009—seven had both Senators vote in favor—22 Ayes in all.  In other words, nearly a quarter of the entire Senate voted in favor of legislation that so upset their home State governments that those States joined in litigation to un-do it.

How different might that Christmas Eve vote have been had there been no 17th Amendment, such that those Senators were representative of, and responsible to, their home State governments?  I have no illusions that you would have seen a much different result for the delegations from Washington or Colorado, both of which have wholly lurched Leftward in recent years.  But consider the State-level environment in the remaining 13 States suing the government to un-do a vote by their own Senators.  Every one of those States—Alaska, Florida, Indiana, Louisiana, Michigan, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Dakota, Virginia, and Wisconsin—have Republican governors, and legislatures controlled by the GOP. 

One has to think that under those conditions, a Senate with members subject to selection by those State governments would have yielded a very different vote.  Even if you indulge in the assumption that the Senate delegations for Michigan (2 Ayes), Nevada (1 Aye), and Pennsylvania (2 Ayes) would have voted the same way, you still get a flip of 13 votes, resulting in the bill being defeated 47-52.  You could further assume—although I think it unlikely—that both Virginia Senators would still have voted Aye, and the Democrats still would have come up one vote short.  And recall that the 2009 Senate vote was on strict party lines; the Democrats had no defections, meaning that in a closer or losing vote, they had no arms left to twist.  Meanwhile, Jim Bunning (R-KY) missed the vote, and one suspects if he were going to have been the difference-maker the GOP could have found a way to persuade him to come in from the bullpen.

But for a little-known alteration in the fundamental structure of the Republic, Senator Cruz might not have found himself in the well of the Senate, all-but alone on the front line of a fight he shouldn’t have had to be fighting.

Go get ‘em, Ted.  Some of us citizens are behind you all the way.

Enforcing Freedom

“And you’re in a tough spot, Jimmy, because you didn’t read the Playtone contract that you, yourself, signed.  And it says you do what I say.  And I say you record these songs from the Playtone catalogue.  You record That Thing You Do! in Spanish.  You get one cut per side of the L.P., but I don’t want any of this lover’s lament crap. I want something peppy, something happy, something up-tempo. I want something snappy.

            —Tom Hanks as Mr. White in That Thing You Do!

Back in 2006 Elaine and Jonathan Huguenin, owners of a small Taos photography studio, declined Vanessa Willcock’s request to shoot her same-sex “commitment ceremony,” citing the conflict between their Christian beliefs and same-sex unions.  Although Willcock found another photographer to do it—for cheaper—she sued the Huguenins anyway for illegal discriminatory practices.  On Thursday the New Mexico Supreme Court ruled that the their refusal to take the assignment violated the New Mexico Human Rights Act.  In his opinion for the unanimous court, Justice Richard Bosson trumpeted the case as highlighting the compromise and accommodation that he says is the essence of what America is about:

“At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others . . . But there is a price, one that we all have to pay somewhere in our civic life . . . The Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people.”

As an initial matter, let me say that if you accept the Rule of Law, as I do, the court appears to have gotten this one correct.  Under the New Mexico Human Rights Act, it is an unlawful discriminatory practice for

“any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap[.]”

N.M. Stat. 28-1-7 (F).  The statute defines a “public accommodation” as “any establishment that provides or offers its services, facilities, accommodations or goods to the public[.]”  N.M. Stat. 28-1-2 (H).  Thus, taking the statute on its face, by opening their doors and offering their services to the public, the Huguenins were forbidden from making any distinctions—for whatever reason—in offering or refusing to offer those services based on sexual orientation or gender identity.  This is the statute the court was given to work with, and under the Rule of Law the court was bound to enforce it.  The court did its job.

But notice the inconsistency the application of the New Mexico statute in this case highlights.

Justice Bosson says that the essence of America is that “all of us must compromise, if only a little, to accommodate the contrasting values of others,” but apparently that’s a one-way street; the Huguenins have to compromise to accommodate lesbian unions, but neither the lesbians nor the State of New Mexico have to compromise to accommodate the Huguenins’ Christian beliefs.  To the contrary, they punished the Huguenins for adhering to their religious convictions and withholding their services.  And there’s the rub.

Say what you want about this being a natural extension of the Civil Rights era.  This case is VERY different than, say, a diner refusing to serve lunch to blacks.  Eating lunch has nothing to do with race, thus the service of the meal isn’t in any way condoning the thing to which a racist diner owner objects.  The diner owner isn’t participating in the patron’s blackness.   But the nature of the Huguenins’ services—wedding photography—requires them not only to tolerate or even accept a same-sex union, they actually have to participate in it, thus taking part in the very activity to which their religious conscience objected.  Justice Bosson pays lip-service to the Huguenins’ rights, saying they only need channel their conduct, not their beliefs, but his sentiment is hollow: in sum, they can believe whatever they want as long as they don’t act on those beliefs.

In a different context, this case would be patently shocking.  Imagine the Huguenins were approached by a Satan-worshipper to photograph a Satanic wedding.  Very few would go so far as to say that they should be compelled to accept that assignment, yet that’s what the New Mexico statute would appear to require.  Or let’s reverse the case and suppose a gay photographer were approached by a vocal opponent (on religious grounds) of gay rights to shoot his Southern Baptist wedding.

You’d never hear the end of that one.

With the PC crowd, it’s always all about individual freedom and individual rights . . . as long as it’s their freedom and rights we’re talking about.  When it’s your freedom and rights and they conflict, well, you understand we all [read: you] have to make compromises to accommodate different points of view. 

In this instance, the Constitution should have protected the Huguenins.  They have a First Amendment right to the free exercise—that’s their “conduct,” Mr. Justice Bosson—of religion.  They have a Fifth Amendment right not to be deprived of their liberty or property without due process and just compensation.  They have a Thirteenth Amendment right to be free from involuntary servitude.

More fundamentally, whether you like it or not individual freedom necessarily includes the freedom to discriminate; to choose with whom you will associate, and with whom you will do business.  It has to.  You may disagree with the bases for my particular prejudice; I may even be morally, fundamentally, and in every other way wrong.  But so long as I am not harming another or infringing upon another’s rights, the concept of individual freedom, if it is to mean anything, must mean I am nevertheless free to indulge in it.  If you disagree with me, you are equally free to refuse to associate or do business with me.

But in this age of political correctness run amok, it doesn’t work that way.  And now we see it taken to its logical conclusion, that it’s no longer enough to have to accept the views and behavior of those in PC-favored groups with whom you disagree, apparently now you have to condone or even forcibly take part in them, your rights and freedom be damned.

The Huguenins didn’t prevent Vanessa Willcock from having her same-sex ceremony.  Nor did they keep her from having it photographed—indeed, she got that done for less money than the Huguenins would have charged, thus arguably doing her a favor.  All they did was decline to participate in an activity to which they had a moral objection based on their religious beliefs.  And for that, the State of New Mexico has ordered them to pay thousands of dollars in attorneys’ fees.

American liberty at its core should be about live-and-let-live.  Justice Bosson is correct in that sense when he writes that we must “leave space for other Americans who believe something different,” and support “the tolerance that lubricates the varied moving parts of us as a people.” 

But that space and tolerance has to go both ways.