Archive for the 'Civil Liberties' Category
Posted by Trent Telenko on 21st May 2013 (All posts by Trent Telenko)
Over the week end of May 18-19 2013 the Obama Administration official Dan Pfeiffer went out and spun the IRS scandal saying “The law is irrelevant”. On the contrary, the law is very much relevant to the IRS scandal, including prohibitions against specific acts by IRS personnel and more general laws of which the ones to watch concern private civil actions for damages under the federal Racketeering, Influence and Corrupt Organizations (RICO) Act (18 USC 1961, et seq.) and Civil Rights Act (42 USC 1983, et seq.). There is every possibility that the victims of the IRS’s suppression of Obama political opponent free speech rights will sue the IRS and individual IRS employees under the civil rights and civil RICO laws for a $150-to-$650 million legal payday.
Remember, _THE IRS CONFESSED_. There is no argument that it admitted some of its actions concerning Tea Party organization tax-exempt applications were unlawful, i.e.., illegal. It is obvious that the IRS and its staff engaged in an organized multi-work unit, multi-state, plus Washington DC Headquarters, wide conspiracy to suppress the Tea Party. The IRS unlawfully applied special rules to Tea Party applicants that it did not to others and that conspiracy prevented them from exercising their free speech rights for the 2010 and 2012 election cycles.
It also is very clear that the IRS — via the questions it was asking the Tea Party and other religious non-profits — was busy creating a quite extensive Nixonian/Ailinskyite ENEMIES LIST for future use in intimidation and the depriving Obama Administration political opponents of their Constitutional Rights.
Those are classic CONSPIRACY AGAINST RIGHTS (18 USC 241) and DEPRIVATION RIGHTS UNDER COLOR OF LAW (18 USC 242) violations.
See these criminal federal civil rights statutes, whose violation gives rise to civil liability for damages too:
“Conspiracy Against Rights (18 USC 241)
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.”
“Deprivation Rights Under Color of Law (18 USC 242)
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both;
and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.”
That is the criminal side of things.
The problem AG Holder is going to suffer obstructing discovery in civil rights and civil RICO lawsuits against the IRS is that criminal prosecutions and civil suits for damages proceed in tandem. The civil suits aren’t stayed by criminal prosecutions on the same subject, let alone by criminal “investigations” short of prosecutions.
The IRS “Special Group’s” delay of tax exempt status prevented Tea Party NGO’s from fund raising and participating in two political cycles (2010 and 2012) by educating “low information voters” as to the political issues of the day, like the National Rifle Association does. The NGO’s whose applications for tax-exempt status were slow-rolled can claim “trade and business” damages under Civil RICO provisions of Federal law. And the Supreme Court of the USA decided decades ago that criminal acts by the Federal government “under the color of law” do not qualify for sovereign immunity under the Federal supremacy clause of the constitution.
To quote a lawyer I know –
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Posted in Big Government, Civil Liberties, Crime and Punishment, Current Events, Elections, Health Care, Law Enforcement, Obama, Politics, Tea Party, The Press, Uncategorized | 24 Comments »
Posted by David Foster on 20th May 2013 (All posts by David Foster)
Catherine Engelbrecht and her husband own a small manufacturing business.
Catherine dared to express political opinions and organize political activities which were not to the liking of the Obama administration and its left-wing allies. Very quickly, Engelbrecht Manufacturing found itself facing inquiries from the IRS and the FBI and OSHA and the ATF.
Read Catherine Engelbrecht’s story here.
Of course, we can’t be sure–and Catherine can’t be sure–that these investigations were politically-motivated. Maybe the aggregate of separate actions by separate agencies was merely a matter of chance. It seems about as likely as being hit on the head by a meteor, but it’s possible.
And it is specifically this impossibility of knowing what is really behind discretionary activities on the part of large and powerful government bureaucracies (absent legal action forcing the agencies to reveal their internal documents and discussions, which most people will not be able to afford) that makes this sort of thing so frightening.
I don’t think any seriously-informed person can doubt that a climate of intimidation is being driven by the Obama administration. Obama has clearly brought some of the toxic aspects of Chicago political culture to Washington with him, and these are added to the end-justifies-the-means philosophy which is a staple of leftism in general.
As long as Barack Obama is in office, I don’t see how anyone can feel reasonably assured of fair and nonpolitical treatment by any federal agency.
Catherine Engelbrecht says the harassment has forced her to seriously reconsider whether her political activity is worth the government harassment she’s faced.
“I left a thriving family business with my husband that I loved, to do something I didn’t necessarily love, but [which] I thought had to be done,” she says. “But I really think if we don’t do this, if we don’t stand up and speak now, there might not [always] be that chance.”
Posted in Business, Civil Liberties, Obama, Politics, USA | 22 Comments »
Posted by David Foster on 16th May 2013 (All posts by David Foster)
Professor Anne Hendershot, a sociologist, was targeted for an IRS audit in 2010 after she wrote a series of articles, mostly in Catholic publications, that were critical of Obamacare. The IRS summoned Professor Hendershott to a meeting to discuss the “business expenses” associated with her writing. Hendershott reports that the IRS agent wanted to know “who was paying her” and barred her husband from attending the inquiry, even though the Hendershotts file joint returns. Hendershott says that she was so traumatized by the experience that she stopped writing about political topics, which presumably was the intended effect.
“It was clear they didn’t like me criticizing the people who helped pass Obamacare,” she said of the audit,” later adding, ”The IRS is very frightening.”
In addition to creating stress and fear, Hendershott said that the experience came at a great emotional and financial expense for the family, noting that even after the audit the government sought more information from her.
(excerpted from PowerLine and The Blaze)
Of course, she can’t prove that she was targeted politically (or couldn’t until now, when subpoenas directed against the IRS may force the revelation of such information.) And that is precisely what makes the power wielded by the IRS and other Federal agencies so frightening. An individual can be sentenced to a Kafkaeqsue subterranean passage of indefinite duration, at the discretion of low-level officials in a local office, Cabinet officials in Washington, or mid-level bureaucrats anywhere in between. Hence, the maintenance of individual freedom requires that Federal Government activities be conducted with a high degree of integrity and respect for law.
What apparently happened to Professor Hendershott should not be happening to anyone in America.
Obama says he is “angry” about the IRS political activities that have been revealed. Sure, he’s angry about the political impact of the revelations on his administration. But is he angry that the activities occurred in the first place?
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Posted in Britain, Civil Liberties, History, Politics, USA | 26 Comments »
Posted by Lexington Green on 13th May 2013 (All posts by Lexington Green)
In America 3.0 we discuss the origins of the common law, and how it was well-suited to adapt inductively to changing conditions, in contrast to the more top-down Roman law that predominated on the Continent.
This recent post on the John Wilkes Club blog, makes this point nicely:
There is no eschatology in the common law: its purpose is to reflect changes in the cultural, social and economic structure, not to direct them towards an objective preconceived in the minds of cultured and erudite elites for our betterment. Likewise there is no eschatology in free markets: they are a tool for the allocation of goods and services according to ever-changing consumer preferences, not for directing them towards some imaginary ‘ideal’ allocation. Not only is there no ethical basis for the social and economic coercion which rational, artificial, imposed order inevitably involves; but also, because even a benevolent genius is trapped in the prison of imperfect information described by Hayek and others, it does not work.
The post cites to The New World of the Gothic Fox: Culture and Economy in English and Spanish America by Claudio Veliz, a great favorite of ours, and concludes in Hayekian fashion: “… the ability to manage the modern welfare state is not just beyond any particular person, but beyond anybody … .”
Quite so. And that why is it is failing. And that is why the next iteration of America will be flatter, more networked, less coercive and better, cheaper and faster at everything that matters. But we have to get all this detritus out of the way, first … .
Cross-posted on America 3.0.
Posted in America 3.0, Anglosphere, Book Notes, Britain, Civil Liberties, History, Libertarianism, Quotations, Society, USA | 4 Comments »
Posted by David Foster on 18th April 2013 (All posts by David Foster)
Most readers will have at least heard of the anti-Nazi resistance movement known as The White Rose, which was centered around the University of Munich.
On February 22, 1943, three leading members of the group–Hans Scholl, his sister Sophie Scholl, and their friend Christoph Probst–were tried by a “People’s Court” and sentenced to death. The sentences were carried out that same day.
The transcript of the People’s Court’s verdict provides useful insight into the totalitarian mind. It can be found here.
I have some comments on this document, but before posting them I’ll wait to see what others have to say.
What, if anything, particularly strikes you about the transcript?
Posted in Civil Liberties, Germany, History, Morality and Philosphy | 27 Comments »
Posted by David Foster on 29th March 2013 (All posts by David Foster)
(Originally posted in October of 2010. I was reminded of this post by Stuart Schneiderman’s post here about the growing acceptance of the idea that government knows best what’s good for everyone..and should have the power to make them do it. I should note that Cass Sunstein is no longer an Obama Czar but is back to being a law professor.)
I haven’t read Jonathan Franzen’s novel, Freedom, but Erin O’Connor has been reading it and reviews it here. Based on her summary, it seems that Franzen’s basic opinion about freedom is this: he doesn’t like it very much. Consider for example these excerpts:
…the American experiment of self-government, an experiment statistically skewed from the outset, because it wasn’t the people with sociable genes who fled the crowded Old World for the new continent; it was the people who didn’t get along well with others.…also: The personality susceptible to the dream of limitless freedom is a personality also prone, should the dream ever sour, to misanthropy and rage.
“Freedom,” for Franzen, is a red herring. As a national ideal, it paralyzes us, preventing government from behaving with the rationalism of European nations (there are passages about this in the book). And, on a personal level, it is simply immiserating. Every last one of Franzen’s major characters suffers from the burden of too many choices.
In a novel, of course, one cannot assume that opinions expressed by the characters are those of the author himself–but in this case, it seems to me that they likely are, and this opinion appears to be shared by most commenters at Erin’s post.
What really struck me in Erin’s review is her remark that I am starting to think that this novel may amount to a fictional companion piece for Cass Sunstein’s Nudge..the referenced work being not a novel, but a book about social, economic, and political policy co-authored by Cass Sunstein, who is now runnning the Office of Regulatory and Information Policy for the Obama administration. (See a review of Nudge, Erin’s post about the book, and my post about some of Sunstein’s policy ideas.)
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Posted in Academia, Book Notes, Civil Liberties, Civil Society, Philosophy, Political Philosophy | 2 Comments »
Posted by Lexington Green on 12th March 2013 (All posts by Lexington Green)
[B]y a singular chance, the expansion of that small society from Elizabethan times onward became increasingly identified with the central movement in the history of the modern world. No mere book can hope to do justice to the theme: it is written in the lives of men, in their work and arts, in the creations of their minds, in science and industry, in the busy tracks of the ocean, upon the landscape and on the face of the outer world. It was an extraordinary, an unimaginable, fate that befell the island people. Wherever we look in the world, or in modern history, we come upon evidence of the contribution they have made. Whether it is at sea, in the arts of navigation or maritime warfare from Drake to Nelson to our own time; whether it is in voyages of discovery from the Cabots to Cook and Scott of the Antarctic, in methods of planting and colonisation from Humphrey Gilbert and Ralegh, Captain John Smith and the founders of New England to Gibbon Wakefield and Cecil Rhodes; or in industry, trade, finance; whether it is in the experience of self-government, laid open for all to see, or in the essential traditions of the free world — personal freedom for the citizen, liberty of opinion and speech, the sanctity of individual life (the arcana of civilized society); or in the example of an instinctive and generalised morality of common sense and toleration, with its precious message of individual responsibility; whether it is in the gradual unfolding of the resources of industrial and mechanical power (the basis of modern industrial civilisation, worked out in this island), with its subsequent developments in atomic energy and in the air; or in the unceasing proliferation of its genius at once for literature and science — the experience of the island people has been more and more closely bound up with the essential achievements of the modern world, the most significant and certainly the most fruitful movements of the human spirit in the modern age.
A.L. Rowse, The Expansion of Elizabethan England (1955).
In our upcoming book, America 3.0, Jim Bennett and I trace the roots of American freedom and prosperity back through British and English history to the conquest of the island by Angles, Saxons and Jutes fifteen centuries ago. But our focus is on America.
The quote from A.L. Rowse sketches a much larger theme which our (already large) book could not contain: the English impact on the entire modern world. A book on this subject may yet appear from Jim Bennett’s hand, and it will be the Big Book, which we have discussed for years, a history of the entire Anglosphere from its oldest Indo-European roots down to today and outward into the future.
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Posted in America 3.0, Anglosphere, Arts & Letters, Book Notes, Civil Liberties, Civil Society, History, Society, USA | 4 Comments »
Posted by Carl from Chicago on 10th March 2013 (All posts by Carl from Chicago)
Recently I was reading how a professor at the University of Illinois at Chicago was arrested for bringing an unloaded handgun to work, and that it made the news media. I reflected briefly on the fact that you can bring a loaded, concealed gun with you in most places in many states in the US and it wouldn’t be news, it would in fact be normal activity, for instance in the adjacent state of Indiana.
Meanwhile, in California, it is common for people to smoke marijuana openly as is discussed here. Needless to say, this behavior would get you immediately arrested in many states particularly in the south and midwest.
Taxation is also highly variable on a state and city basis. New York and California have some of the highest taxes, particularly on income beyond a particular level (progressive taxes). On the other hand, states like Florida and Texas have a much lower level of taxation and a much freer business climate in terms of regulation.
Without getting into the hottest of hot-button issues, clearly there are differences in the types of marriages and reproduction rights / right to life on a state by state basis. These differences are narrowing in some areas and getting wider in others.
Some states have “right to work” laws which massively limit union power, and have flourishing and expanding manufacturing economies as a result. Visit Alabama, South Carolina, and Texas to see where all the former manufacturing might in the midwest and Northeast and West Coast migrated to (if it didn’t go to China or overseas). The enacting of “right to work” laws obviously sends an important signal to business leaders whether or not a state is a friendly place to do business for incremental investment (along with taxation).
The “fracking” revolution has unleashed vast wealth in some states, and in other states it has been banned or severely curtailed. Meanwhile, California is going in on its own with carbon regulations and highly aggressive “green” energy targets, while other states are heavily reliant on traditional (and cost effective) technologies.
The differences on a state-by-state level on these different dimensions seem large and growing. They are much more subtle (though often correlated) with the Red / Blue analysis. An attempt to classify these vectors could be done as follows:
Energy Freedom – the ability to extract and use cost effective technologies (like natural gas, fracking, and coal) and a state’s willingness to invest more for reliability or the requirement to use expensive (green) technologies and curtail energy use even at the expense of industry competitiveness and reliability. California is likely on one end and Texas is on the other side, although many others have large freedom including Pennsylvania.
Safety Freedom – the right to defend yourself at home, in transit, at work and during study or whether that is assumed by the state. Sadly the most restrictive is Illinois and there are many candidates on the other side throughout the south and midwest (Indiana).
Personal Substance Freedom – the right to smoke, the right to drink, and the right to use various drugs or stimulants. Some odd states (like Colorado) are leading the way on this, it isn’t always the traditional Red / Blue divide.
Freedom to Work & Hire – the right to work and not be forced to join a union, and this is also tied with local laws and practices that limit the ability to hire and fire and direct hiring or limit firing in various dimensions.
Freedom to Build / Live / Rent – Houston is famous for having very limited zoning while other states and municipalities have highly restricted zoning practices. The New York co-op concept also severely limits new entrants along with rent control. These laws can also include whether you can work or have a business in your home. While subtle, these practices can have a large impact on prices and how the region functions.
Freedom From Excessive Taxation – Some level of taxation is necessary for government to function but high tax levels have severe intended and unintended consequences of under investment and evasion. Taxation includes state, local, city, sales, estate, property, and “sin” taxes. These vary significantly by area but are highest in California and the East Coast and likely the lowest in the South.
Freedom of Marriage Choice – A larger portion of states are recognizing marriages beyond the traditional marriage, and this varies by state
Freedom of Reproductive Rights – There are a wide variety of approaches and trends on a state level and then there are practical impacts, as well. This is highly variable by state in practice
Freedom on Medical Rights – an emerging model will be how each state approaches new medical practices and funding methodologies, along with the practical availability of doctors that subscribe to the state’s controls and funding methods. This area will grow exponentially in the near future
I believe that these sorts of analyses on a state by state level are much more useful than the traditional Red / Blue view (although they are often correlated) and when you start to dig in to the differences on a state and municipal level they are staggering, particularly when you view the extremes.
It would be interesting and useful to begin to put together the various data sets to analyze states and municipalities along these continuums, and others that I’ve likely missed.
Cross posted at LITGM
Posted in America 3.0, Big Government, Business, Civil Liberties, Economics & Finance, Energy & Power Generation, Health Care, Law Enforcement, Real Estate, RKBA | 9 Comments »
Posted by David Foster on 23rd February 2013 (All posts by David Foster)
1) The Drug Enforcement Administration is attempting to seize a $1.5 million building owned as a retirement-investment property by a dentist and an engineer. Grounds are a $37 sale of pot ..to an undercover agent..by one of the building’s tenants, a medical-marijuana dispensary.
As the judge in the case notes, the Obama administration (in 2009) sent a memo instructing federal prosecutors to not target medical-marijuana patients..before deciding to crack down and sending threatening letters to landlords. He even wondered aloud if President Obama would change his mind about marijuana again, after the building had already been seized.
This, in a country whose current President pretty clearly was himself a marijuana user, not to mention former President Bill Clinton, who “didn’t inhale.” Neither Obama nor Clinton are in any danger of having their property seized, however.
2) When financial questions arose regarding the Mountain Pure Water Company, Washington did not send a few staffers to inspect documents. Instead, last spring, some 50 armed Treasury agents breached the company’s headquarters in Little Rock, Ark. They seized 82 boxes of records, herded employees into the cafeteria, snatched their cell phones, and..according to reports..refused to let them consult attorneys.
“We’re the federal government,” Mountain Pure’s comptroller, Jerry Miller, says one pistol-packing fed told him. “We can do what we want, when we want, and there’s nothing you can do about it.”
3) In Alexandria, Virginia, a 10-year-old was suspended and arrested for bringing a toy gun to school
4) In Tennessee, an Ohio couple was pulled over by pair of black police SUVs. “They were very serious,” said the woman who was driving. “They had the body armor and the guns.”
On the back of the couple’s car was a Buckeye leaf decal, similar to the one Ohio State players have on their helmets.
“What are you doing with a marijuana sticker on your bumper?” asked one of the cops, who had apparently never heard of the First Amendment.
5) In 2005, an Iowa couple purchased a small lot. When they began to lay gravel on the land, which is located in a residential neighborhood, they were hit by an order from the Environmental Protection Administration informing them that the property had been designated a wetland under the Clean Water Act. They were ordered to stop grading their property and were told that they would face fines of up to $75,000 per day if they did not return the parcel to its original state. When the Sacketts attempted to contest the order, the agency denied their request for a hearing.
Last March, the Supreme Court overruled the EPA and stated that the Sacketts are entitled to appeal the EPA order, rejecting the agency’s claims to the contrary.
“The EPA used bullying and threats of terrifying fines, and has made our life hell for the past five years,” said Mr. Sackett. See my post A Defensive Victory Against Administrative Tyranny.
6) Bob Wallace and Marjorie Ottenberg, California residents in their 80s, started a business to make water purification devices for backpackers. Their enterprise has been crippled by the Drug Enforcement Administration and state officials, on grounds that iodine crystals–a key ingredient in their product–can also be used for methamphetamine production.
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Posted in Civil Liberties, Civil Society, Crime and Punishment, Law, Law Enforcement, Political Philosophy, USA | 28 Comments »
Posted by Michael Kennedy on 8th February 2013 (All posts by Michael Kennedy)
UPDATE: An an article at Belmont Club describes interest in alternative money creation as a way of anticipating inflation. It also goes further into a discussion of general competence.
The idea that Virginia should consider issuing its own money was dismissed as just another quixotic quest by one of the most conservative members of the state legislature when Marshall introduced it three years ago. But it has since gained traction not only in Virginia, but also in states across the country as Americans have grown increasingly suspicious of the institutions entrusted with safeguarding the economy.
What has changed is faith in the federal government, not just in Virginia but in a growing number of places. The lack of faith in the competence of government — and the soundness of the dollar — has been growing leading some states to create contingency plans in case the currency goes bust.
Once again, I apologize for my pessimism but this is what I see. First, there is this article, which quotes a well known financier.
There may be a natural evolution to our fractionally reserved credit system that characterizes modern global finance. Much like the universe, which began with a big bang nearly 14 billion years ago, but is expanding so rapidly that scientists predict it will all end in a “big freeze” trillions of years from now, our current monetary system seems to require perpetual expansion to maintain its existence. And too, the advancing entropy in the physical universe may in fact portend a similar decline of “energy” and “heat” within the credit markets. If so, then the legitimate response of creditors, debtors and investors inextricably intertwined within it, should logically be to ask about the economic and investment implications of its ongoing transition.
Certainly “growth” seems to be fundamental to our economic health. That, of course, presumes a growing population but it also would be affected by a stagnant population with a growing age disparity. The obvious example of the latter is Japan.
The creation of credit in our modern day fractional reserve banking system began with a deposit and the profitable expansion of that deposit via leverage. Banks and other lenders don’t always keep 100% of their deposits in the “vault” at any one time – in fact they keep very little – thus the term “fractional reserves.” That first deposit then, and the explosion outward of 10x and more of levered lending, is modern day finance’s equivalent of the big bang. When it began is actually harder to determine than the birth of the physical universe but it certainly accelerated with the invention of central banking – the U.S. in 1913 – and with it the increased confidence that these newly licensed lenders of last resort would provide support to financial and real economies. Banking and central banks were and remain essential elements of a productive global economy.
The effect of asset bubbles on such a system is worrisome as the history of Japan and the recent history of the US have shown. The Panic of 1907 was largely responsible for the creation of the Federal Reserve. That financial crisis is thought, by the authors of a recent book, to have been a consequence of the 1906 earthquake in San Francisco, which destroyed a large amount of real assets and the insurance costs that were associated. The immediate cause was financial speculation but the real losses had added to the fragility of the system.
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Posted in Big Government, Civil Liberties, Conservatism, Economics & Finance, Elections, Libertarianism, Political Philosophy, Politics, Predictions, Public Finance | 23 Comments »
Posted by Sgt. Mom on 4th February 2013 (All posts by Sgt. Mom)
In the foundation-legend of the Swiss confederacy, Alberect Gessler was a cruel and tyrannical overlord installed by the Austrians, who installed his hat atop a pole in the public marketplace and decreed that all should bow to it … to his hat, not merely his person. Such a declaration was, I think, a way of rubbing in his authority over the common citizens – indeed, rubbing their noses in the fact that he could make them do so, and do so in front of everyone else.
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Posted in Americas, Christianity, Civil Liberties, Civil Society, Customer Service, Miscellaneous, Religion, USA | 27 Comments »
Posted by David McFadden on 31st January 2013 (All posts by David McFadden)
The Preamble is one of the few parts of the Constitution that President Obama did not abuse in his first term. He corrected that omission in his second inaugural address by using “We the People” as a refrain. Democratic politicians love to use refrains in their speeches. At Democratic National Conventions the rabble gleefully and robotically chants the refrain with the speaker. The particular refrain Obama used reminded me of a fascinating talk Professor Richard Epstein gave during a panel discussion at the November 2010 Federalist Society Convention. At the time, I was surprised to hear Professor Epstein characterize “We the People” as the “most dangerous words in the American Constitution.” Now I understand that he explained exactly what Obama was up to:
We have a deep ambiguity in our own minds when we start to evoke the image of “the people” in dealing with American constitutional law or indeed with any system of governance. . . . Sometimes we treat it as a celebration: “The American people have spoken and have decided x, y, and z ought to be president,” and what they really mean is that 54% of the voters happen to agree with one side and only 46 with the other, and what we do is we create a kind of an illusion of collective unanimity by taking a term like “people” and turning a majority into a total number. And in fact our Constitution does that in one place where I think it’s most misleading and most dangerous. I think the single most dangerous words in the American Constitution in one sense are the words “We the People,” which begin the Preamble. Now you would ask, now why is it that I would take such a negative view with respect to our document, particularly on this occasion? . . . You have to go back and see what the original draft of this particular provision was, and it said, “We the undersigned delegates of the following states,” and then you go through the rest of the thing. What it does in effect in one way is to kind of create this image of sort of coercive unanimity, and that’s the kind of language that you see also when you’re talking about the People’s Republic of China or the People’s Republic of East Germany–or closer to home, the People’s Republic of Cambridge, the People’s Republic of Berkeley–in which what you’re looking at is the notion that if you can get a majority, what you can do is to design and to organize the preferences of everybody. So the aggressive application of “the people” in terms of its ability to create and make law is in my mind a real open invitation to totalitarianism.
Well, then you look at the other uses of the word people in the Constitution, and by detailed and sophisticated empirical techniques I was able to identify four such uses in the Constitution, all of which are contained in the Bill of Rights, one of them having to do with the right of assembly, one of them having to do with the various issues on searches and seizures, and one having to do with the Ninth and Tenth Amendments on reverse power. [The Second Amendment has another.] Well, this is what I call the benign use of the term people . . . because what you are doing is you are saying every individual within the society is going to be protected against the impositions of government so that the people can be secure in their homes. We do not mean by that sentence that all of us live in one giant tepee in which we have various separate rooms and they are going to be protected. What we mean is that each of us have private and individual rights and that each and every one of them should be protected against government. So the defensive use of the term people in the Bill of Rights has a completely different resonance and a completely different tone than the rather offensive use, i.e., attacking use, of the term when it starts to go into the Preamble. And this, of course, had real consequences with the design of the original Constitution because every time you start hearing the term people in the Preamble being invoked, it’s to sort of indicate the direct relationship of individuals to the central government, which necessarily is meant to sort of underplay and degrade the role of the states in the original system. So it’s not as though this is simply a rhetorical flourish without institutional consequences. It surely has those kinds of institutional consequences.
As if to illustrate Professor Epstein’s point, Obama uses the phrase “We the People” five times to create an illusion of collective unanimity about (1) redistributionism, (2) the welfare state, (3) climate change (formerly known as global warming), (4) something opaque and equivocal about the war formerly known as the War on Terror, and (5) certain civil rights movements guided by equality “just as it guided all those men and women, sung and unsung, who left footprints along this great Mall.”
Regarding that last one, he probably did not have in mind the men and women, or their predecessors, who would leave footprints along the Mall a few days later in the fortieth March for Life. And in addressing the illusory collective unanimity on the welfare state, Obama used another of his favorite rhetorical devices, the false choice. Those who say we have to choose between having our cake and eating it too are presenting a false choice, Obama argues. We can have our cake, preserving it for our children, and eat it too, he insists. (Actually, he said, “we reject the belief that America must choose between caring for the generation that built this country and investing in the generation that will build its future,” but it’s the same thing).
The inaugural address refers to “collective action” and shows Obama eager to use it to turn the illusory collective unanimity he claims into coercive unanimity. From the perspective of Obama and his infatuates, the Senate, with its advice and consent duty and its tradition of unlimited debate, is a problem to be “fixed,” for it stands in the way of the will of the people. Happily, that effort was checked on both fronts last week.
It was to be expected, I suppose, that a demagogue par excellence would eventually find the Constitution’s “most misleading and most dangerous” phrase and exploit it to lend legitimacy to his program of undermining liberty and the constitutional structure.
Posted in Civil Liberties, Obama, Political Philosophy, Quotations, Rhetoric, Speeches | 8 Comments »
Posted by Zenpundit on 26th January 2013 (All posts by Zenpundit)
Cross-posted from Zenpundit.com
The Center for Combating Terrorism at West Point released a report on domestic terrorism that raised hackles for a number of reasons. Despite the dismissals of liberal political pundits, the reasons for objections to the CTC report are legitimate but they did not need to arise in the first place and might have been avoided with a slightly different editorial approach or appropriate caveats (I just finished reading the report, which is primarily focused on the usual suspects). Here’s why I think the normally well-regarded CTC stumbled into a hornet’s nest:
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Posted in Academia, Civil Liberties, Civil Society, Conservatism, Law Enforcement, Libertarianism, Military Affairs, National Security, North America, Political Philosophy, Politics, Society, Terrorism, USA | 12 Comments »
Posted by Trent Telenko on 18th January 2013 (All posts by Trent Telenko)
We are swiftly coming up on another “mugged by reality moment” regards firearms similar to the one that was created with the Clinton era gun magazine ban.
Few remember today that the “next big thing” in civilian pistol market in the early 1990′s was how many bullets a pistol magazine could handle. Post Clinton magazine ban, the civilian shooter market wanted the _smallest_ semi-automatic pistol that could hold 10-rounds. And the gun manufacturers responded to the market demand with a host of pistol makes and models that effectively replaced the “.38 Special” as the little hide out gun of choice. Now police across America are under greater threat, from much wider base of stolen, small, concealable, semi-autos in criminal hands, than they ever were prior to the Clinton magazine ban.
We are again in much the same situation with the Obama gun control executive orders.
See this July 28, 2012 Forbes piece titled “The End of Gun Control?” on the arrival of metal material vat 3-D printers that are capable of making functional AR-15 receivers. Now consider the implications of the much more widely installed base of plastic material vat 3-D printers for making _gun magazines_. In a few months we are going to see lots of designs for plastic gun magazines, of many sorts, with maybe a spring and a cheap stamped metal lip to fit available firearms. People will soon be selling spring and lip kits for 3-D printed plastic magazines at gun shows and “off the books” person to person gun trading networks. Hell, manufacturers will be redesigning guns to more effectively use 3-D printed magazines before the year is out.
In the end we will have a much larger base of high capacity magazines in this country, because the price of them is about to drop an order of magnitude, all thanks to Obama’s E.O. Regulations creating a market opportunity for a disruptive technology.
All of this is easily foreseeable and the people about to cause this turn of events just don’t care. This is not about the safety of ordinary people. The answer to the violent mentally unstable is to identify them by their pattern of behavior and involuntarily drug them to non-violence.
The fact that gun control is on the table as “The Solution” is because the people in favor of it, these “2nd Prohibitionists”, would rather have the power to oppress ordinary people than the authority to medicate the violent mentally unstable. They get more ego boo from oppressing ordinary people — just like the original Alcohol Prohibitionists — with the added bonus of leaving the violent mentally ill on the streets to give them the chance to go there again and again.
Posted in Americas, Civil Liberties, Entrepreneurship, Human Behavior, Law, Law Enforcement, Politics, Uncategorized, USA | 10 Comments »
Posted by Michael Kennedy on 5th January 2013 (All posts by Michael Kennedy)
Hubris is a Greek word that signifies overweening confidence that leads to a big fall. It is a common component of tragedy. The Wiki article seems to get lost in ancient Greek references and, having read a lot about Greece and Greek history, I don’t think they are on target.
In its modern use, hubris denotes overconfident pride and arrogance; it is often associated with a lack of humility, though not always with the lack of knowledge. An accusation of hubris often implies that suffering or punishment will follow, similar to the occasional pairing of hubris and nemesis in Greek society. The proverb “pride goes before a fall” (from the biblical Book of Proverbs, 16:18) is thought to summate the modern use of hubris.
This is a bit closer to the definition I prefer.
I think we are about to see a grand spectacle of hubris on the part of the re-elected president. The Washington Post describes the outline, as if it was a done deal.
The White House is weighing a far broader and more comprehensive approach to curbing the nation’s gun violence than simply reinstating an expired ban on assault weapons and high-capacity ammunition, according to multiple people involved in the administration’s discussions.
A working group led by Vice President Biden is seriously considering measures backed by key law enforcement leaders that would require universal background checks for firearm buyers, track the movement and sale of weapons through a national database, strengthen mental health checks, and stiffen penalties for carrying guns near schools or giving them to minors, the sources said.
To sell such changes, the White House is developing strategies to work around the National Rifle Association that one source said could include rallying support from Wal-Mart and other gun retailers for measures that would benefit their businesses. White House aides have also been in regular contact with advisers to New York Mayor Michael R. Bloomberg (I), an outspoken gun-control advocate who could emerge as a powerful surrogate for the Obama administration’s agenda.
Nowhere in the article does it acknowledge that the enemies of gun bans include, in addition to the NRA and the “gun manufacturers,” a majority of the people. This is why second terms are so well know for trouble for incumbents.
The gun-control push is just one part of an ambitious political agenda that Obama has pledged to pursue after his decisive reelection victory in November, including comprehensive immigration reform, climate-change legislation and long-term deficit reduction. Obama also faces a reshuffling of his Cabinet, and a looming debate over the nation’s debt ceiling that will compete for his time and attention in the coming months.
In addition to potential legislative proposals, Biden’s group has expanded its focus to include measures that would not need congressional approval and could be quickly implemented by executive action, according to interest-group leaders who have discussed options with Biden and key Cabinet secretaries. Possibilities include changes to federal mental-health programs and modernization of gun-tracking efforts by the Bureau of Alcohol, Tobacco, Firearms and Explosives.
The election victory was less “decisive” than the White House and the political left seems to believe. It is no surprise that they are looking for ways to avoid Congress. Now that we know how the EPA evaded the Freedom of Information Act with secret e-mail accounts, nothing should surprise us.
I was going to go to the gun store today but got bogged down in running errands and will have to go tomorrow. The nearest one has a good price on Colt 1911 model .45 calibre pistols. Since the proposed actions by the Obama folks are aimed at banning “military-style handguns,” I guess I had better hurry.
One potential strategy would be to win support for specific measures from interest groups that are normally aligned with the NRA, according to one person who works closely with the administration on gun-related issues and who spoke on the condition of anonymity because of the issue’s sensitivity.
For instance, this person suggested, Wal-Mart and other major gun retailers may have an incentive to support closing a loophole that allows people to bypass background checks if they purchase firearms at gun shows or through other types of private sales. That could result in more people buying guns in retail stores.
I think Wal-Mart is too smart to get into bed with this administration but maybe not. Certainly, Obama is no friend of non-union Wal-Mart. The same applies to gun retailers who can’t keep enough guns and ammunition in stock. I think they know who their friends are. If not they will learn quickly.
Finally, At the White House meeting, Stanek said, “the vice president indicated that there was a very short timeline for him to get back to the president with his recommendations because the American public has a short memory.”
Yup. Get that unconstitutional law going before anybody wakes up.
Posted in Big Government, Civil Liberties, Human Behavior, Politics | 12 Comments »
Posted by Sgt. Mom on 27th December 2012 (All posts by Sgt. Mom)
Cynic that I am, I am deriving a great deal of amusement from some of the media-political-general public storms whipped up in the wake of the horribly tragic Newtown shootings, and the deaths of two firefighters in an ambush set by an ex-convict in upstate New York. As if the shootings weren’t horrible and tragic enough in themselves, now we get to enjoy the reflexive Kabuki dance of ‘we must ban those horrid gun-things!’ being played out – especially since some of the very loudest voices in this chorus are politicians and celebrities who live with a very high degree of security at their workplaces and homes, and whose children attend rather well-protected schools. Such choruses appear to be completely oblivious to the fact that for many of the ordinary rest of us, poor and middle-class alike, the forces of law and order are not johnny-on-the-spot in the event of an attempted robbery, rape, break-in or home invasion. To rely on the oft-used cliché, when moments count, the police are minutes away. In the case of rural areas in the thinly-populated flyover states law enforcement aid and assistance might be closer to being hours away.
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Posted in Americas, Civil Liberties, Civil Society, Crime and Punishment, Just Unbelievable, Law Enforcement, Leftism, Media, RKBA, Urban Issues, USA | 60 Comments »
Posted by leifsmith on 24th December 2012 (All posts by leifsmith)
When a law bans exchanges wanted by everyone directly involved a number of things happen:
1) The exchanges continue;
2) Prices of the banned items rise and wars to control turf begin;
3) New criminals are created, including many people who are ordinary good people (like colored margarine seekers);
4) New enforcement agencies and staff are created;
5) New jails are built and new jailers are trained;
6) Laws, lawyers and lawsuits proliferate;
7) A new branch of law and its practitioners prosper and support further extension and complexification of regulations;
8) A portion of the entire apparatus of enforcement and punishment is progressively corrupted;
9) New agencies and staff are created to discover, eliminate or suppress the corruption;
10) Many begin to support ever more drastic suppression and punishment;
11) A profitable subliminal partnership emerges unifying the interests of violators and enforcers as the profits from the illegal trade are negotiated and distributed among them;
12) The business engages all of the following: bad people buying and selling, good people buying and selling, police, judges, academics, enforcement trainers and suppliers, prison builders and suppliers, staff to support all of this, journalists to cover it, media organizations to sell the coverage;
13) Completely uninvolved people are caught in crossfires, including taxpayers;
14) The costs of controlling the new flourishing evil continue to grow seemingly without limit;
15) The vast network of beneficiaries of the law applaud and lobby for its continuation, vilifying all opposition;
16) Everyone gets more and more discouraged and inclined to hate all humanity. This list is probably too short.
However all of these bad things may be balanced by the fact that creative people are engaged in producing media based on the things that happen because of the prohibition, and by watching and reading we all learn delightful new things about how the world works. (channeling Voltaire).
It is not enough to simply ban exchanges that have consequences we don’t like. The costs of doing it should be compared with the costs of not doing it. Those costs usually dwarf the costs that would arise from unhindered transactions.
Posted in Civil Liberties, Crime and Punishment, Law, Law Enforcement, Media, Political Philosophy, Society, Tradeoffs | 25 Comments »
Posted by Michael Kennedy on 15th December 2012 (All posts by Michael Kennedy)
There is information still coming to light about this awful case. Early reports, such as the name of the shooter and the alleged murder of the father, were predictably wrong. It turns out that the shooter, named Adam Lanza, a 20 year old with a history of odd behavior and some evidence of mental illness, such as autism, was living with his mother who was his first victim. There are a number of suggestive reports, that she decided to “stay home to care for” her 20 year old son.
The treatment of severe mental illness in this country has been altered for the worse by a movement that began in the 1960s when mental illness began to be described as a “civil rights ” issue. Several books and movies described abuse of power in commitment of the mentally ill. The first such movie was “The Snake Pit” in which a young woman is committed for what sounds like schizophrenia. The treatment of the time (1948) can be seen as barbaric but there was nothing else available. She did recover, although we know that without adequate treatment, recovery from schizophrenia is unlikely.
The movie that really devastated the mental hospital system was called “One Flew Over the Cuckoo’s Nest” and starred Jack Nicholson.
The movie was powerful in showing the Nicholson character as a guy who just is “different” and harmless.
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Posted in Academia, Civil Liberties, Civil Society, Crime and Punishment, Health Care, Privacy, Science | 31 Comments »
Posted by David Foster on 3rd November 2012 (All posts by David Foster)
I’ve written numerous times (here, for example) about the growing tendency of the “progressive” Left to use intimidation tactics against those who dare to disagree with them. Given that this group now dominates the Democratic party, it was predictable that violence, intimidation, property destruction, and electoral fraud would come to play an increasing part in national elections, and this is now happening.
The national dinosaur media hasn’t done a very good job in reporting on these events, but some local media outlets have done much better. Watch this video (which comes via a comment from Jason in LA at the above-linked post)…it may take a few seconds to start, and it’s about 5 minutes long, but you should definitely watch the whole thing.
Here’s another story–four men in Ohio caught stealing Romney signs while driving a union-owned truck.
As I noted in the post at the first link, the son of a Wisconsin state senator was actually beaten up when he objected to 2 men stealing a Mitt Romney yard sign on the lawn
See this report from the 2004 election…J Christian Adams, an attorney and former DOJ official, says he observed SEIU union members attempting to block access to the polls by Bush supporters (identified by their bumper stickers) in West Palm Beach. And, of course, we’re all away of the decision by Obama’s Attorney General, Eric Holder, to drop the case against members of the New Black Panther Party who were accused of committing voter intimidation in the 2008 election—even though it seems that the government’s case was basically already won.
In Virginia earlier this month, the son of Democratic Representative Jim Moran was caught on video coaching someone on how to commit voter fraud.
On television (HBO), Bill Maher said:
If you’re thinking about voting for Mitt Romney, I would like to make this one plea: black people know who you are and they will come after you
Immediately followed by “I’m kidding”..you know, it’s not really very funny. The remark is an insult to black people as a group, of course, as it feeds a stereotype of blacks as inherently violent, and it is poisonous to political dialog and to American society as a whole. (Ed Driscoll, from whom the Maher link came, said in response to the “black people…will come after you” line: “OK, but if Stacey Dash, Condi Rice, Mia Love and Star Parker are coming over, could you ask them to give me some advance notice? I really need to tidy the place up first.”)
The rage, irrationality, and lack of respect for the rights of others which has been demonstrated by so many Obama supporters in this campaign in very disturbing…but should not be surprising in view of the conduct of the “progressive” Left over the last two or more decades.
As J Christian Adams said:
Tuesday is the day you get to decide whether America is a land where a thugocracy can flourish, or whether freedom’s holy light will thrive. The founders of this great land foresaw a day like November 6, 2012. Every patriot who came before you acted. Now it is your turn.
Posted in Civil Liberties, Elections, Obama, Politics, USA | 2 Comments »
Posted by Shannon Love on 3rd November 2012 (All posts by Shannon Love)
[Note: This post isn't really about abortion itself but instead about the exception Democrats make for the issue of abortion in their ideology. It didn't have to be abortion with all it's related moral and legal complexity. It could have been some other medical procedure or anything that affects the human body. Don't get distracted by the broader issues of abortion itself.]
The 2012 Democratic platform states:
The Democratic Party strongly and unequivocally supports Roe v. Wade and a woman’s right to make decisions regarding her pregnancy, including a safe and legal abortion, regardless of ability to pay. We oppose any and all efforts to weaken or undermine that right. Abortion is an intensely personal decision between a woman, her family, her doctor, and her clergy; there is no place for politicians or government to get in the way.. [emp added]
The Democrats claim to support abortion, even to the extremes, because they believe that women own their own bodies and have the right to perfectly control anything that happens to those bodies. They argue that as long as any part of the fetus/infant remains inside the woman’s body, it directly affects her body and she has a right kill the fetus if she so chooses. Any interference in that choice is social and government violation of the principle of self-ownership and control.
That sounds good … but the Democrats are obviously lying. The Democrats don’t really believe that women own their own bodies nor that women have an innate right to control what happens to those bodies.
I state that with perfect confidence because once you stop to think about it, it becomes obvious that the Democrats commitment to “Our bodies, our choice,” begins and ends with abortion.
Far from being the natural outgrowth of a broad philosophical commitment to the idea of self-ownership and control of our own bodies, the Democrats stance on the right to abortion is the sole and glaring exception to an ideology that otherwise treats the bodies of women like the bodies of government owned cattle.
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Posted in Civil Liberties, Leftism, Morality and Philosphy, Political Philosophy, Religion | 7 Comments »
Posted by Sgt. Mom on 31st October 2012 (All posts by Sgt. Mom)
So a few days to go until Election Day; I guess we can call this the final heat. Texas is pretty much a red state stronghold, although there are pockets of blue adherents throughout. Yes, even in my neighborhood, there are a handful of defiant Obama-Biden yard signs visible, although outnumbered at least three to one by Romney-Ryan signs. It amounts to about three or four dozen, all told; I think that most of my neighbors prefer keeping their political preferences this time around strictly to themselves.
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Posted in Americas, Civil Liberties, Civil Society, Leftism, Obama, Politics, Predictions, Tea Party, The Press, USA | 6 Comments »
Posted by David Foster on 29th October 2012 (All posts by David Foster)
Tyrone Woods was one of the men murdered at the State Department facility in Benghazi, Libya. His father,Charles Woods, was spoken to at the memorial service (at Andrews Air Force Base) by Barack Obama, Hillary Clinton, and Joe Biden.
Charles Woods did not perceive very much remorse or genuine sympathy on the part of these politicians. While assessing someone’s genuine level of sympathy is of course a subjective matter, what is not subjective is the actual words that are spoken…and the following words, according to Mr Woods, were spoken by Hillary Clinton:
“we’re going to have that person arrested and prosecuted that did the video.”
We know now, of course, that the Benghazi attack was a pre-planned terrorist operation that had little if anything to do with the video in question. All the evidence, furthermore, is that the Obama administration was aware or should have been aware of this fact at the time, and that their strident and repeated public assertions to the contrary were either reflections of incompetence and opinion-jumping, or were actual deliberate lies. But even if it had been true that the attacks were in response to fury over the video, this would not have justified Hillary’s above statement in any way. Tyron Woods and the others were not murdered by a filmmaker; they were murdered by violent radical Muslims.
What Hillary said is directly analogous to a WWII government official attempting to comfort the grieving father of a soldier killed in battle with Nazi forces by saying:
“we’re going to have Charlie Chaplin arrested and prosecuted for making that movie (The Great Dictator) that got the Nazis so upset with us”
Hillary’s remarks should be offensive not only to all Americans but also to all people everywhere who care about individual freedom.
And what is this about a Secretary of State and a President reaching down N levels into the bureaucracy and demanding that a probation violator be arrested because of his political “crimes”? This is something we would have expected in the Third Reich or in Stalin’s Russia, not in the United States of America.
This administration’s handling of the Benghazi affair makes very clear, as if it wasn’t clear enough already, just how little respect this administration has for the lives and liberties of citizens.
These people are truly morally deficient, in a major way.
–my post What Century is This?
–Don Sensing, a former Army artillery officer, on the Benghazi attack and Flash traffic
Posted in Civil Liberties, Media, Middle East, Politics, Terrorism, USA, War and Peace | 21 Comments »
Posted by David Foster on 24th October 2012 (All posts by David Foster)
The son of a Wisconsin State Senator was beaten up when he objected to two men stealing a Romney sign in his yard.
One would like to believe that this is an exceptional case without larger significance. But then, I am afraid, one would be wrong.
Almost ten years ago, I wrote a post titled Be Afraid: The Rise of Political Violence and Intimidation in America. The post was inspired by a story about attacks on a pro-Israel group in Los Angeles:
“This may have been advertised as an anti-war rally,” said Suzanne Davidson, “but I could hear in the distance, as I looked at the hate-filled faces, military boots marching on broken glass.”
Davidson is a leader of a small group in LA that had been meeting regularly to show public support of Israel. Prior to the group’s usual rally on October 6, she learned that an “anti-war” group was planning a major demonstration in the same area. Should she cancel the pro-Israel demonstration? No, she decided…after all, what could be feared from a “peace” rally?
But from the very beginning, Davidson says, members of the “anti-war” demonstration behaved in a hostile and intimidating manner toward the smaller pro-Israel group, beginning with curses and a demand to “F___ off.” This escalated to the cry “You are Zionist Nazi pigs.” 1500 “anti-war” demonstrators marched past the 25 members of the pro-Israel group, some of them shouting “shame on you,” along with assorted name-calling. “I shudder to think what would have happened had the police not been there,” wrote Davidson.
As shameful as this event was, similar behavior–and much worse–has become increasingly common. At Concordia College (Toronto), Benhamin Netanyahu was prevented from speaking by a riot of Palestinian students and their supporters. Thomas Hecht, a Holocaust survivor, was pushed against a wall, spat on, and reportedly kicked in the groin. A woman said that during the same incident, attackers “aimed their punches at my breasts.” Two weeks later, at the same college, a Jewish student was beaten bloody by an Arab student.
Laurie Zoloth, a campus Jewish leader, summed up the campus situation in these words: “This is the Weimar republic with Brownshirts it cannot control.”
I cited other examples of political violence and intimidation in the post, and noted that while such behavior seemed to be most common on college campuses, it was not limited to those venues–in Colorado, for example, a car belonging to Rita Moreno (a leader of the initiative to scrap bilingual education) was torched. There was no proof that the fire-bombing was political…but Moreno says that there have been other forms of harassment against supporters of this initiative, including dumping of garbage in their yards and 3 AM phone calls.
Since that initial post, I’ve posted many stories about similar attempts at violent or near-violent political intimidation. Most of these can be found by clicking the following link: Goon Squad. Note especially this one: then he went down under a hail of black boots.
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Posted in Academia, Civil Liberties, Civil Society, Politics, USA | 24 Comments »
Posted by David McFadden on 21st October 2012 (All posts by David McFadden)
Alongside evidence of weak job growth, there are also signs of recovery. What may be recovering, however, is the recession. New orders for manufactured goods declined 13.2% in August, the steepest decline since January 2009. Real average hourly earnings declined 0.6% in August and 0.3% more in September. And the number of persons working only part-time because full-time work was unavailable increased from 7.9 million in August to 8.5 million in September.
Overall, the state of the economy is somewhere between retrogressive and woeful. Detailing the policies and initiatives of the Obama administration that have kept the economy down as it struggled to recover is an immense task, but it needs to be done.
A good place to start is the regulatory burden that has given businesses reasons to think twice about hiring more people. In his last State of the Union Address, Obama claimed, “I’ve approved fewer regulations in the last three years of my presidency than my Republican predecessor did in his.” The Heritage Foundation pointed out that Obama was counting all regulations no matter their size or cost as the same. Many Bush-era regulations eased compliance costs. The Heritage Foundation calculated that in its first three years the Obama administration adopted 106 major regulations that increased costs on private-sector activity compared to 28 such regulations in the first three years of the Bush administration. The regulations of the first three years of the Obama administration imposed $46 billion in annual costs while those of the Bush administration imposed $8.1 billion in annual costs.
Proposed regulations of the Obama administration also have to be added to the toll. Businessmen—as well as farmers—have also had to be concerned about mischievous regulations that, so far, they have been able to fend off. For example, a pair of proposed labor regulations combine Obama’s antipathy for employers with his antipathy for the Constitution. One regulation coerces speech, and the other restrains speech.
The regulation that would coerce speech was adopted by the National Labor Relations Board in August 2011. Observing that union organizing efforts were badly in need of some publicity, the NLRB adopted a regulation requiring employers to post a notice with a rather slanted list of rights. The notice states that employees have a right to join a union, negotiate with an employer through the union, bargain collectively, strike, picket, and lastly choose to do none of those things. The notice does not inform employees of their right to decertify a union, refuse to pay union dues in a right-to-work state, and refuse to pay dues greater than what is required for representational purposes. The rule makes failure to hang up the notice an unfair labor practice.
The NLRB’s statutory authority for this command is dubious. Board member Brian Hayes wrote a withering dissent that opened with Justice Scalia’s observation that “agencies may play the sorcerer’s apprentice but not the sorcerer himself” and concluded that the regulation is “both unauthorized and arbitrary and capricious.”
Lawsuits were filed against the rule in federal courts in South Carolina and the District of Columbia. The lawsuits argued that the National Labor Relations Act did not authorize the National Labor Relations Board to require a poster and that the regulation compelled employers to present a pro-union message on their property and was therefore unconstitutional, like the New Hampshire law that had required “Live Free or Die” to be on every license plate. During the litigation, the NLRB repeatedly postponed implementing the rule.
The courts split on whether the NLRB exceeded its authority. The South Carolina district court said there are many federal statutes that call for the posting of notices, and the National Labor Relations Act is not one of them. Nonetheless, the D.C. district court held that the rule was somewhere within the NLRB’s rulemaking powers. Regarding the constitutional issue, the D.C. district court said the rule does not compel employers to say anything. The notice is the government’s speech, the government’s message.
Both cases are on appeal. The D.C. district court enjoined enforcement of the rule during the appeals.
The U.S. Department of Labor Unions proposed the regulation that would restrain free speech. That regulation would constrict an exemption from a reporting requirement under the Labor-Management Reporting and Disclosure Act of 1959. The Act requires employers to report in detail any agreements with or payments to a consultant who undertakes activities to persuade employees on whether or not to organize and bargain collectively. The Act has an exemption providing that reports are not required on account of advice to an employer. For years the Labor Department had interpreted the exemption to cover activities that involved both advice to the employer and persuasion of employees. In June 2011 the Department proposed a regulation, known as “the persuader rule,” changing its interpretation of the exemption so that it covers only services related exclusively to advice. If any part of the service is to persuade employees, directly or indirectly, then the exemption is lost.
The Department received hostile comments on the proposal not only from the Chamber of Commerce, as you might expect, but also from the American Bar Association. The Chamber and the Bar Association said the persuader rule’s new subjective test made the advice exemption meaningless. The Bar Association said that the persuader rule would thwart the will of Congress, conflict with the ABA Model Rule on confidentiality, and undermine both the confidential lawyer-client relationship and employers’ right to counsel.
Faced with that opposition, the Labor Department has taken no further action on the persuader rule. The Department may be waiting until after the election. The rule could be part of the unknown, unspoken agenda for a second term.
If the persuader rule ever is adopted, it too should be challenged on constitutional grounds. The Supreme Court has not yet directly addressed whether attorney advice is protected speech and, if so, what level of scrutiny should be given to regulation of it. Renee Knake argues in a recent law review article that attorney advice is protected speech and restraints on attorney advice should be given strict scrutiny. That is, they are unconstitutional unless they are necessary to further a compelling governmental interest and are narrowly tailored to do so using the least restrictive means.
These two latent regulations of the NLRB and the Department of Labor are not “regulations on Wall Street,” as Obama likes to refer to all of his regulations. Wall Street firms, not being labor intensive, would be among the enterprises least burdened by these rules.
The rules are far from the administration’s worst insult to the First Amendment (that prize goes to the suppression of the free exercise of religion by the Department of Health and Human Services), but they are part of a pattern of not allowing the First Amendment, the Recess Clause, the Presentment Clause, the Commerce Clause, or anything else get in the way of the task of suppressing the economy.
With mischief like these regulations in mind, Mitt Romney said at the second debate, “I talk to small business across the country. They say, ‘We feel like we’re under attack from our own government.’” Denying that Obama is hostile to business, Democrats insist that his infamous taunt “You didn’t build that” has to be taken in context. I agree. The context is his presidency.
Posted in Big Government, Business, Civil Liberties, Economics & Finance, Law, Obama, Unions | 1 Comment »
Posted by David Foster on 6th October 2012 (All posts by David Foster)
The attempt to delegitimize free speech continues, with growing advocacy of what would essentially be blasphemy prosecutions.
Here’s a professor at the University of Chicago who thinks it unfortunate that a strong interpretation of the First Amendment prohibits the government from “restricting the distribution of a video that causes violence abroad and damages America’s reputation.”
A strange understanding of the word “causes.” If a group called Avengers of Sicilian Honor decides to blow things up every time a movie is released that isn’t properly respectful of the Mafia, then is the movie causing the violence? Obviously, the entity causing the violence is the Avengers. One would have hoped a law professor would understand this.
Does criticizing a religion, to whatever excessive degree, automatically create violence in a way that criticizing the other things–the Mafia, for example, or cats, or the male gender–does not? See this post and discussion at Ricochet. In comments there, I said:
Why should *religion* be more protected from offensive speech than any other belief system…and what, precisely, qualifies as a religion? If we mock the extreme-environmentalist believers in a conscious Gaia, are we committing blasphemy? How about believers in astrology, or magical crystals? How about Nazi believers in the ancient Teutonic gods?
And why should beliefs with a supernatural belief content receive more protection than comprehensive but non-supernatural belief systems? A dedicated Marxist has as much emotional investment in his beliefs as does a fundamentalist Baptist or an extreme Muslim.
Who is going to decide that Muhammed and the Holy Trinity are protected from mockery, but the belief in astrology is not? Are we going to have a list of approved religions? Who is going to establish such a list, and based on what criteria?
The real criterion, of course, would be propensity to violence. If a group shows a propensity to violence when its icons are criticized, then it would in practice receive special protection under the 21st-century blasphemy prohibitions. Those advocating for such rules either don’t understand the incentive system this would create, or don’t care.
Last Wednesday, Zbigniew Brzezinski–yes, that Zbigniew Brzezinski, the one from the Carter administration–added his voice to the chorus of those calling for restrictions on free speech:
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Posted in Academia, Civil Liberties, Islam, Media, Terrorism, The Press, USA | 9 Comments »