Conservative Donnybrook

Jaime Daremblum has a short but sweet article on the Weekly Standard outlining the heroic efforts by the Honduran government to obey the rule of law and support its democratic process.  It is wonderful that Team Obama has changed its stance on the Honduran situation but it is unacceptable that they had it so very wrong in the first place. 

One would expect a Harvard educated attorney to understand the rule of law… I said one would expect….

thanks to immigration advocates or libertarians like Lindsey Graham, John McCain, and, sad to say, Ron Paul.

Our country was yet again grievously wounded because of “free trade,” “tolerance,” and interventionism.

Would that the myriad soldiers — in Texas, of all places — had availed themselves of the duty to protect themselves and their comrades and loved ones by carrying concealed weapons, this comatose piece of excrement would have been dead after the first shot was fired.

I weep for the country that used to be the United States of America but which is now the United State of Aetna, indivisible, with tyranny, oppression, and “free” “healthcare” for all.

Article I, Section 8 of the United States Constitution (see Dead Letter) defines the powers of Congress. It reads:

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

What provision above grants Congress the power to provide health care to Americans?

I’m afraid that if the House’s arrogation of powers not delegated to them stands, even the most obtuse of us will come to the (belated) realization that the United States is not a free country and its citizens are but slaves the fruits of whose labors are enjoyed by their slavers.

President Obama and his State Department reacted to the news of the imminent release of convicted Libyan terrorist Abdel Baset al-Megrahi by the Scottish Justice Ministry with peaked annoyance. The terrorist was welcomed to Libya (by cheering hordes waving Scottish flags) after being released on humanitarian grounds due to prostate cancer. President Obama had expressed mild dismay to Scotland, and made clear his studied, brusque invitation to the Libyan government not to allow any hullabaloo or hi-jinks escalate to the point where they would be too tired for school in the morning. State Department officials reiterated the Administration line, stating that “this may affect our future relationship.” It is unclear whether the United States will now rescind its invitation to Libya to attend the upcoming homecoming cotillion. The President indicated that his feelings had been hurt and, although he admired the bouquet and the perfumed card sent by Ghadafi, it may be some time before he texts back. “Only time will tell if he really means it or if these are just sweet-nothings,” said the sullen Obama. A highly-placed source inside the White House (who had recently been visiting to attend to the First Family’s spiritual needs) said that President Obama was overheard taking a page out of Ward Cleaver’s playbook, saying “I mean it, Michelle. They need a consequence, and I think grounding and possibly even a couple-thousand barrel reduction in their annual oil sales to us might just teach them that lesson.” The Scottish Justice Minister, sporting an unexplained black eye and constantly shooting glances over the old shoulder, maintained that theirs was a true love and that Libya was a good provider.

Ordinarily, I would take a good deal of time to point out that many here at the site have repeatedly pointed out the nakedness of the emperor. I would rehash the times Patriot-Act statists in conservative wool have been called on their leftism, secularism, and big-government authoritarianism. I would also bewail the unmitigated gall of such a character having the chutzpah to call his critics allies of Michael Moore, George Soros, and Nancy Pelosi.  I would loudly and often decry the shameless and unguarded honesty of those who reduce their philosophy to “kill” to the exclusion of sound economic policy, the sanctity of life, the sovereignty of our country, and a host of other issues. Normally. Not this time. This time I’ll let the argument you presented dismantle itself and show the readership of this blog how one-note, indefensible, and breathtakingly destructive your side is.

The article to which you linked, when read through the lenses of one conversant with history (which one would expect a self-described historian to do), demonstrated far better than I could of the bankruptcy of your side. Kagan starts out by mentioning the Great Depression. He failed to note any of the actual causes of that depression. He failed to take into consideration the “adventurism,” to borrow one of your words from a recent comment, of the United States leading up to that crisis. The economic decisions in the midst and wake of the Civil War (National banking acts of 1863 and 1864 which consolidated currency to fund the Union’s war; Federal Reserve creation in 1913; Aldrich-Vreeland in 1908, etc.) and the domestic and foreign policy decisions in the wake of the war (Reconstruction; almost immediate attempts at imperialism in Santo Domingo, Cuba, and Liberia – all of which came about due to slavery and its end; westward expansion, Indian wars, Alaskan purchase; Roosevelt’s splitting of the Republicans, his appointments to the Supreme Court, etc.; financial, monetary, and fiscal management and mismanagement), not to mention World War I, all contributed directly to the spreading thin of the American military and building resentment throughout the world.

Kagan goes on to insinuate that, because the United States seemed to somehow ignore foreign policy, Japan militarized and Germany fell under Hitler’s sway. This is howlingly funny. What we are required to do if we are to accept Kagan’s hypothesis is to absolutely and unequivocally deny that black is black, that water is wet, or that fire is hot. Aside from the fact that it was American “adventurism” (e.g., with the Great White Fleet, which further fueled a zealous desire to militarize in newly-nationalist Japan) which thrust Japan on its path toward imperialism (read about Perry’s Black Ships and the cracking of isolationist Japan, the Meiji Restoration, the Manchurian, Korean, and Russian campaigns of Japan), we can hardly be faulted for “ignoring” Germany: we had shipped thousands of American boys there to fight, bleed, die, and kill, and had established a new world-political body to deal with the German problem only 20 years before the 1933 Nazification. One could be excused for refusing to read any of the rest of Kagan’s ludicrous bombast after realizing this, but, intrepid soul that I am, I trudged on.

Kagan engaged in your least-favorite pasttime. He had the balls to criticize Ronald Reagan (gasp! the horror!) in practically the same breath as he criticized Jimmy Carter. Calling Reagan’s policy decisions about Lebanon “failed” and asserting that these policies led to the bombing of the Marine barracks is hardly what one would expect to hear you lauding. Implicit in this is the recognition that we should not have been there to get bombed. Reagan quickly and wisely realized this and did exactly the right thing: he got out and left Israel to what it was perfectly, demonstrably capable of doing: defending itself and letting Beirut and the Lebanese tend to their own damned affairs. No more Marines were killed there after that. No Al-Aqsa,  ”Quds Force,” or Hezbollah started trouble by killing Americans there. What a concept.  What were “Reagan’s failed policies” in Lebanon? Assisting a “multinational force” along with French troops and others to “keep the peace” in a sectarian civil war. What spawned the Muslim hatred and subsequent suicide bombings? Perceived American preference for Maronite Catholics and the shelling of Druze areas which inadvertantly killed civilians.

Kagan touches tangentially and seemingly accidentally upon one truth: things now are probably more dangerous for the U.S., but because of our huge overseas presence and constant “spreading of democracy” or “war on terror” or “search for WNDs” (we really do need to find those nasty World Net Dailies) or whatever they’re calling it these days, not because we are letting our guard down.

People are growing weary of the wars, growing weary of the constant misequation of the United States of America with Israel by the radical Zionists, and people are growing weary of the stubborn economic hardships put upon them by constant imperialism. Bring Americans home to defend America. Root out radical Islam here and deport it. If the resistance starts here, put it down swiftly and with no remorse. But there is no way we need to be defending South Korea from a tinpot near-dead in charge of a run-down non-entity. There is no justification for making all those “security guarantees” to states in the Russian sphere of influence. There is no way you could possibly believe that Kagan essay if you know and understand history. There is no way you can continue to call yourself a conservative and defend such Wilsonianism. It is definitionally schizophrenic, or alternatively simply mendacious, to claim to be conservative and yet espouse this baseless, historically-illiterate, radical Ledeenishness while at the same time believing it makes us safer. Your apologists split their time between appealing to how much safer we are and how dangerous it’s getting. Your side constantly purports to support “democracy” and “freedom” while working overtime - often in cahoots with outright radical socialist would-be totalitarians – to quash them through Patriot Acts, occupations of foreign countries, propped-up banking cartels and outdated unionized auto companies (remember which President started those great things?). Your side is trying to cling desperately to relevance, which is understandable. But for whom are you striving?

Obama met with but did not apologize to Sgt. (Aleister) Crowley. “Professor” Gates (through his lawyer) threatened to dredge up some kids to fabricate relate “similar” experiences with Sgt. Mephistopheles if the Cambridge authorities release the audiotapes of “Professor” Gates’ ranting while Sgt. Beelzebub was trying to radio information inside the house he was legitimately inside to investigate a possible burglary in progress and make sure there was not another person inside threatening “Professor” Gates. Here’s the story.

President Obama famously stated during his campaign for the office he now holds that he wanted Americans to be able to frankly and openly discuss matters of race in America. Okay.

Last night, as I watched the President’s press conference, I watched in mild shock as Lynn Sweet (from Obama’s adopted hometown newspaper, the Chicago Sun-Times) unabashedly toadied up to the privileged, elitist president by lobbing a (likely pre-screened) softball question having nothing to do with so-called healthcare reform. Calling the President’s attention to the brouhaha surrounding his “friend” Henry L. “Skip” Gates’ arrest by Cambridge, MA police, the President, a former Constitutional Law professor, said “I think it’s fair to say, number one, any of us would be pretty angry. Number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home. And number three — what I think we know separate and apart from this incident — is that there is a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately, and that’s just a fact.”

So, to recap, the President of the United States of America — after admitting he did not have a command of the facts — made some serious leaps in a nationally televised press conference.

I would not be “pretty angry” if police officers investigating a possible burglary at my house asked me to identify myself, nor would I be “pretty angry” if they detained me if I were stupid enough to yell at them and refuse to provide such identification. In fact, neither would just about any other sane member of society not bent on attacking police officers. But there’s more to it, of course. Just as I suspected when I heard of the incident, “Professor” Gates, who makes his living — a handsome living among the privileged elite of Northeastern academia in Harvard — immediately began to play the race card, and I feel confident in speculating that he did so with a view toward future racemongering, as is his wont. Read the police reports for yourself. You be the judge. 

But let’s frankly and openly discuss another thing that’s “just a fact,” Mr. President: African-Americans and Latinos “disproportionately” commit the crimes in this land of ours. Not so in many other places; but here in the good ol’ U.S. of A., even with a Republican-authored and pushed Civil Rights Bill, the facts are plain. Janet Reno’s Department of Justice confirmed it, even. Federal UCR stats continually confirm it. Blacks and Latinos, and specifically, young black and Mexican, Dominican, and Puerto Rican men, disproportionately commit crimes of almost all classifications. Steve Sailer had a detailed and irrefutable piece on the matter in 2005 on VDare.com. Please take the time to read it and pay close attention to the data he lists and the sources he cites.

That has quite a lot to do with the “long history” of some minorities being “disproportionately” stopped: it’s called criminal profiling, and it is entirely different from simple racial profiling. Guess what? A white guy in a BMW circling the block in a crappy lower-income black neighborhood — as anyone who has ever watched COPS could tell you — is just as likely to be stopped (moreso, probably) as a black guy in the same area, because, chances are, he’s up to no good. Looking for blow, a hooker, whatever. Same thing applies to the ones cops know by experience commit other types of crime. Except those other types of crime turn out to be the ones society deems most serious: murders, aggravated assaults, robberies, burglaries, thefts, and so on. If blacks comprise about 13% of the population, give or take of the country as a whole, and if that 13% is “disproportionately” crammed into urban areas, we still should raise an eyebrow when the crimes in those areas with higher concentrations of blacks and Puero Ricans, for example, still show a disproportionately large number of those minorities committing those crimes. Not just getting arrested for them, mind you, because noone yet is insinuating (against evidence or common sense) that whites are committing them at higher rates, they just aren’t being arrested for them. Yet. I’ll bet someone, perhaps “Professor” Gates, will surprise me.

So, Mr. President, we’ve laid some other facts out there. Let’s discuss them. How about you start by loudly, vociferously, and continuously demanding that certain slivers of certain minority groups stop acting the way they do? You know, before you go accusing the diversity instructor and universally recognized nonracist good guy cop of acting stupidly before you know anything about the incident (apart from what your racist friend Skip told you, that is).

On the same day that Michael Jackson beat it for the great beyond, Pelosi and her cohort passed the largest tax increase in the history of history. Perhaps you missed it; the news tended to focus only on the passing of a pop singer of doubtful moral character to the exclusion of a number of other stories. Can anybody tell me what ever happened with that North Korean freighter that the U.S. Navy was bird-dogging? Anybody hear about the AMA revolting against Obama’s healthcare scheme? You might have heard that we won the war in Iraq. Maybe not. Did anyone hear that an American soldier was captured by the Taliban in Afghanistan this week? How about that Barack Obama’s nominee for the upcoming Supreme Court vacancy was overturned this week by that same Court?

If you can’t beat ‘em, I suppose, you join ‘em. So, I will show how even the the Michael Jackson estate would be affected by the Cap and Trade bill that the House of Representatives passed last week. But first, a little about the bill itself. The bill itself states that its purpose is ”[t]o create clean energy jobs, achieve energy independence, reduce global warming pollution and transition to a clean energy economy.” Some of that may need to be explained. For instance, global warming pollution is carbon dioxide – the same stuff you exhale. Indeed, each respirating organism on earth is now categorized as a polluter. For an idea of what “transitioning to a clean energy economy” looks like, take a look at Spain. Apparently, if we look at Spain, it is possible to create clean energy jobs, but each one will cost between $750,000 and $1.4 million and will cost 2.2 jobs in other areas per job created. On other hand, we will be saving the planet, right?

But, how do they propose to do it? The bill is designed to increase the price of energy in order to drive down consumption.

During the campaign, Obama also pledged that he would never raise taxes in any form on Americans making less than $250,000 per year. But his cap and trade tax is estimated to cost American families almost $2,000 a year when it becomes effective, growing to almost $7,000 a year for a family of four by 2035. That will be paid through higher prices for electricity, oil, gasoline, natural gas, home heating oil, coal, food, and every product that is produced or transported using energy.

In short the Cap and Trade proposal passed out of the House last week is a “Tax on Everything” – everything that uses energy. An interesting exercise is to try to think of anything that you purchase that requires no energy to produce, deliver, sell, or consume. The increased costs associated with that energy usage will be embedded in the price of every consumer good and service that Americans utilize. As a result, Americans will purchase fewer goods and services. If Americans purchase fewer goods and services, then companies who provide those goods and services will be forced to cut production (read: jobs). But, hey, we’re saving the planet.

One of my “favorite” provisions of the bill is in sections 201-203, which requires every State to adopt the building codes of California. (See ACES Sec. 201(c)(3) which reads “COMPLIANT CODE — For the purposes of meeting the target described in subsection (a)(1)(A) [which required that State's become compliant within one year of enactment] for residential buildings, a State that adopts the code represented in California’s Title 24-2009 by the date two years after the enactment of the American Clean Energy and Security Act of 2009 shall be considered to have met the requirements of this subsection for the applicable period.”) The code then goes on to dictate to State legislatures the legislation it is required to pass and the timeline on which it is required to pass it.  The States are to be denied federal funding from the Act if they are found to be noncompliant. Indeed, if  the State fails to enforce compliant building codes within 2 years, the Secretary of Energy shall enforce the codes within that State.

The bill requires not only new buildings to satisfy whatever arbitrary standard the Secretary chooses, but it also places the burden on homeowners of existing houses to “retrofit” their property before they are allowed to sell them. This provision alone will place an incredible economic burden on homeowners whether they earn $250,000 or not.  Their mobility, their choice of where to live, their ability to change jobs will be affected by this single onerous provision. But, we will gladly sacrifice our freedom because it’s saving the planet, right? I hope MJ installed new windows and an EnergyStar compliant furnace before he died, otherwise his estate’s going to get hit with a gigantic bill to retrofit Neverland Ranch before they can sell it and distribute the proceeds to his heirs.

There is plenty more where that came from in the bill that has nothing to do with the actual Cap and Trade bits and which are sure to raise the eyebrows (or ire) of anyone who loves his freedom. For instance, there is an entire section regulating outdoor lightbulbs to be brighter and last longer. There’s even a provision regulating the type of bulb one can use to illuminate their artwork, including mandating its color spectrum and power factor.

As mentioned earlier, outrageously, this bill passed the House of Representatives 219-212. Now the bill goes to the Senate. If the Senate passes the bill, it will become law. If the Senate passes any kind of compromise bill, it will go to conference and will become law in some form. The only hope now is that the Senate stops this bill dead. “Obi Wan Senati, you’re our only hope!”

After all that, I apologize, but I don’t really care how this bill will affect the Jackson estate. I can assure you it would be bad. But, thanks for all the MJ Googlers for stopping in.

About two and one-half weeks ago the Empire State Stem Cell Board voted to spend some of its $600 million budget, which is funded by the state, to pay women $10,000 for the opportunity to harvest their eggs. The eggs would then be used to create embryos from which stem cells would be harvested. The story does not indicate that men would be paid for donating their sex cells.

If you stick with the story, the ethical question is raised (buried) toward the end of the article.

Remember when the United States used to stand for democracy and the rule of law?  Those were the days!  The United States used to support smaller democratic states going as far as to help craft constitutions, federal laws, judicial systems and legislatures.  Not any more.  Now the U.S. has signaled that we stand for left-wing tyrannts, socialist dictators and the rise to power through illegal means.  Constitutions, courts and legislatures be damned.  Now we stand with Fidel, Hugo, Evo and Rafael in supporting those that would disregard a democratic constitution, government and the rule of law.  Now Obama will have the United States return to supporting dictators in Latin America.  Now we support Zelaya and his clearly illegal and undemocratic methods.

The United States must end the cycle of supporting tyrants in Latin America.  Zelaya is/was a socialist and a dictator in the making.  This was no coup, the military in Honduras arrested the president after he illegally solicited assistance from the dictator Chavez to illegally hold a referendum which would have allowed him to run for election indefinitely.  Furthermore, the military arrested Zelaya upon request from the Honduran Supreme Court after its judgement was dismissed by the would-be dictator Zelaya.  Zelaya actively attacked a military installation with leftist supporters.  His goal was to distribute illegal ballots in an attempt to forever control the nation.  Only the legislature can call for a constitutional referendum. 

So, the legislature condemned Zelaya, the Supreme Court condemned him and the military defended democracy and the rule of law by abiding by the constitution and the wishes of the other two branches of government by arresting the hack. 

And Obama calls for a return of the socialist would-be dictator in defiance of democracy and the rule of law.  Mr. Obama, one’s character can be determined by the company he keeps.  Fidel and the mini-communists in this hemisphere are not good company.

The floodgates are being cracked ever so lightly. These examples of State sponsored death are alarming, but not at all unanticipated. When a society embraces a pervasive Culture of Death, there will be fewer and fewer brakes on its moral degeneration.

Part I can be found here. Part II can be found here.

Conclusion: A New Glorious Judicial Revolution

Because conservatism is ill-equipped to correct the problems the United States faces as a result of nonoriginalist, activist Supreme Court decisions, there needs to be a countering force that will return the country to its traditional foundation. The failure of conservatism means that this countering force must itself be “activist” in the sense that the doctrine of stare decisis cannot be an impediment to restoring tradition. However, I contend that, properly understood, it is not “activist” at all. A judiciary operating in the Neo-Whig fashion would be restoring to the Constitution, its lost unwritten half, returning it to the previous understanding that the document traditionally has enjoyed. For the written Constitution, this will mean the return to the “historical experiences, conventions, customs, the complexities of political compromise, and long-received principles of morality” that Americans have known for nearly 220 years. For the unwritten constitution it will mean a return to those values known to the Anglo-American tradition for nearly 800 years. Once again Professor Calabresi provides an excellent example of Neo-Whig reasoning:

For example, in Apprendi, Blakely, and United States v. Booker, the U.S. Supreme recently revived the notion that mandatory sentencing guidelines could not give judges the power to adjust upward a prisoner’s sentence unless the charges justifying the upward adjustment were proved to a jury. Under Professor Merrill’s conventionalism, these cases are certainly wrongly decided because for about 20 years, since the adoption of the Federal Sentencing Guidelines, we have gotten quite used to a reduced role for the jury in finding all the critical facts leading to a sentence. For Merrill, I assume, the fact that thousands of cases have been decided this way for twenty years means the Court’s Apprendi line of cases is clearly a violation of conventionalism.

I think, of course, that the Court in the Apprendi line of cases rejected twenty years of wayward practice and restored an 800 year old fundamental right to jury trial under English and American law. Was this “revolutionary” decision consistent with a general skepticism about the powers of human reason? You bet it was. The innovation of the last twenty years in cutting back on the right to jury trials was the effort of the Sentencing Commission to give us a more rational world, and it was that effort which smacked of the French Revolution. In rejecting, the practice of the last 20 years and restoring the practice of the previous 800 years, the Apprendi Court was leading a conservative revolution, a coming full circle if you will and returning to the point where we started.[1]

Returning to the “right to privacy” example and illustrating how a Neo-Whig Court would approach a case in that line is profitable. If we suppose, as is likely to happen in the near future,[2] that one of the states passed a prohibition on abortion and that a challenge to that law was heard by the Supreme Court, how would a Neo-Whig’s approach look? First, the Neo-Whig would look to the text of the Constitution (anew) to see if a right to abortion or some other right (like a right to reproductive privacy) could be found there. As noted above, Justice Stewart was unable to find any wording in the Constitution that could be read to make the right to privacy into an enforceable right let alone would anyone have been able to find a right to abortion, which is an extension of the right to privacy. The presumption, at this point, would be against there being such a right.

However, the Ninth Amendment says that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[3] Since a Neo-Whig believes in the existence of an unwritten constitution, there must be a mechanism for reading it into the written constitution. There are a few places where this might be done. The first is the Ninth Amendment. Unenumerated rights are just the sort of thing one might expect to find in an unwritten constitution, therefore it is only natural that one would use the Ninth Amendment to import them since they have been neither denied or disparaged. The second place where one might be able to import some of the content of the unwritten constitution might be the Privileges and Immunities clause of the Fourteenth Amendment.[4]

Therefore, the Neo-Whig would have to look to the “historical experiences, conventions, customs, the complexities of political compromise, and long-received principles of morality”[5] to see if such a right has been historically enjoyed by Americans. Upon such an examination, the Neo-Whig would discover that there is no such long-standing custom or principle of morality that supports the right to abortion.[6] A Neo-Whig may very well conclude that there is an historical acknowledgement of some sort of right to privacy, but it would almost certainly not extend to sexual behavior that has historically been considered immoral through the centuries.[7] Therefore, a Neo-Whig would conclude that since there is no text supporting the proposed right to abortion, and since abortion is not a right that finds long-standing expression in the historical experiences of Americans, that the Federal Constitution has nothing to say on the matter. This outcome would incidentally support the long-standing American values of limited government, the writtenness of the Constitution and Federalism by the simple fact that the decision of whether or not an abortion would be legal, limited or illegal would be left to the states.

Similarly, each of the other cases mentioned above[8] would be approached in the same way. Contraceptive use and homosexual sodomy would likely be found to be issues for the several states to decide and not an occasion for federal intervention.

But how does this differ from the originalist approach? Let us take Justice Scalia as an example. In Troxel v. Granville, Scalia wrote “the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”[9] Likewise, Judge Bork has likened the Ninth Amendment to an indecipherable “inkblot.”[10] However, with nearly 800 years of evidence to draw from, the content of those unenumerated rights is really not so hard to discern for a Neo-Whig. There is no harm in protecting the traditional rights of Englishmen, passed down through the Constitution to Americans. Rather, the harm would be in disparaging those rights that the founding generation risked so much to defend.

A Neo-Whig revolution in the judiciary, where Traditionalists (formerly conservatives) take back the reins of the Courts is America’s only hope for a return to the values, customs and morals that made this country the greatest to grace the earth. No longer can the country afford to have innovation upon innovation ratcheted in place by a conservative judiciary lacking the tools to turn the tide. It is time to take over the laying of the track, to make a 180 degree turn, and, if the conservatives still desire, they can pound in the spikes behind the Neo-Whigs.

Sorry. Part II is the longest, but it all goes together. Part I can be found here.

What is a Neo-Whig?

As the title to this paper indicates, I will be arguing in favor of an approach to constitutional interpretation that in some way relates to the Whig political party. I qualify this by calling for a Neo-Whig approach and so one can only assume that there is a difference between the Whigs of old and the Neo-Whig that I call on today. Let us first look at what I take to be the Whig party’s stance toward government and so define that term. Afterward, I will describe in what ways the new Whig of today, or Neo-Whig (although I detest using the designation “neo”)  should differ from the old, thus making what I will call a Neo-Whig.

A. Who Were the Whigs?

The Whigs that I have in mind are those politicians that were largely responsible for the Glorious Revolution of 1688 in England. In particular, I appeal to those Whigs as Edmund Burke described them, and as I understand them from Burke’s description. Burke viewed the Glorious Revolution as a “revolution not made, but prevented.”[1] According to his version, the Whigs of the Glorious Revolution overthrew James II “to preserve [their] antient indisputable laws and liberties, and that antient constitution of government which [was their] only security for law and liberty.”[2] Indeed, the very thought of “the fabrication of a new government” was enough to [rightly] fill the Whigs with “disgust and horror.”[3] Instead the Whig view of proper government was to preserve the inheritance they had received from their forefathers.[4] Innovations by King James II had forced those patriots who valued that inheritance to take the drastic step of deposing James in favor of William of Orange.[5] Whether  James II actually was capable of working fundamental constitutional changes, the Whig interpretation, which Burke strongly proclaimed, held that the king had and that he would.[6] It is quite likely that the real reason behind the deposing of the king was his Declaration for Liberty of Conscious, in which he extended toleration to Catholics and Dissenters and that anger at the king for so doing and fear that a popular uprising may result in another English Commonwealth prompted the Glorious Revolution.[7] In avoiding the establishment of a new Commonwealth, the William of Orange was preventing a looming revolution by deposing the king.[8]

One of the most influential books that Burke wrote was Reflections on the Revolution in France in which he reflected on the origins of the French Revolution.[9] In that book, he predicted that a revolution founded in ideological innovation was doomed to end in disaster.[10] “Burke declared, looking upon the ghastly spectacle of the French Revolution, that is was not merely mistaken, but evil, to attempt to govern a nation by utopian design, regardless of prudence, historical experience, convention, custom, the complexities of political compromise, and long-received principles of morality.”[11]

The American War for Independence stands in stark contrast to the revolution in France. In line with this Whigian train of thought, Russell Kirk more recently writes of the American patriots:

The men who made the American Revolution were not abstract visionaries. Suffering practical grievances, they sought practical redress; not obtaining that, they settled upon separation from the Crown in Parliament as a hard necessity. That act was meant not as a repudiation of their past, but as a means for preventing the destruction of their pattern of politics by King George’s presumed intended revolution of arbitrary power, after which, in Burke’s phrase, “the Americans could have no sort of security for their laws or liberties.”[12]

Where the French sought to enshrine the new Enlightenment principles of “Liberté, égalité, fraternité” to replace the outmoded ideas of their French past, the Americans sought a return to the chartered rights of Englishmen[13] and a return to the old modes of living that Americans had lived under for more than 150 years prior to the Revolution. In essence, the Americans wrote for themselves a “conservative constitution.”[14]

This view is bolstered by a survey of the governing document that the Founding Fathers drew up. When one reads through the Constitution, especially the Constitution originally ratified – one lacking a Bill of Rights – one finds a document of extremely practical application. It does not contain the high language one would expect to find in a document extolling a new ideology as one finds in so many governing documents of recent vintage, like the so-called European Constitution establishing the European Union. Rather, it is a functional document, creating a national government that was to coexist with pre-existent state governments – a government which would sit atop these prior governments and exercise only those delegated powers which it was given by the states.

Even once the Bill of Rights was added to the document, it could still be fairly called a conservative document, since every single one of the rights offered for ratification could already be found in one or more of the various state constitutions. Indeed, some of the rights identified by the Bill of Rights could lay claim to a history that stretched back hundreds of years to the Magna Charta.[15] Simply put, there is little, if any, innovation present in the Constitution. Continue Reading »

I have decided to to post a paper I wrote in law school, in which I argue for a new order in judicial decision-making. In particular, I argue that we need an activist. traditional judiciary who will roll back the innovations of the progressives in order to restore a government that comports with the unwritten American government. In so doing, I will be presenting three sections. The first lays out the problem of conservatism, which lacks the means to counter the progressive activism that tends to move the polity in only one direction. The second section will introduce the concept of what I call the Neo-Whig and also the idea of Russell Kirk’s conception of the unwritten constitution. Finally, I present an argument for how a Neo-Whig would decice cases and make the case that our future is dependent on such a judiciary.

The Problem with Conservatism
Imagine a case comes before the Supreme Court. One party asks the Court to discover a new right (perhaps in the penumbrae); the other asks the Court to uphold a principle that has been known in the culture for centuries. Further, let us suppose that the Court decides the case in favor of discovering the new “right.” Over the course of the next twenty years, let us “imagine” that the Court continues to uphold this decision. At the end of twenty years a conservative justice is confirmed to the Court. The problem arises when the new justice opts to uphold the precedent, which has been in place for twenty years, in the interest of stability. Hardly can this be called stable, since it is a relatively recent innovation in the jurisprudence of the Court. But, this is precisely what happens.

This phenomenon is not particular to Supreme Court justices, but also to politicians and judges who consider themselves conservative. The very word “conservative” denotes this tendency to keep in place that which has come before. Conservatives conserve. Progressives progress. And every time “progress” is made, it becomes a candidate for conservation. The question is how long does an innovation have to persist before it is no longer an innovation and has become the traditional cultural position?

Let us make this example a bit more concrete to see how this ratcheting effect of conservatism works with progressivism. In the discussion which follows, I will make much of the fact that many of the Justices involved in the decisions below were appointed by conservative presidents. It does not necessarily (and obviously does not) follow that the judges they appointed were themselves conservative. Many of them turned out not to be by any stretch of the imagination. However, it is a fair assumption that whenever a conservative president appoints a judge and conservative Senators confirm him, they had a reasonable expectation that the judge they appointed would uphold conservative values.

In 1965, Justice Douglas, writing for the Supreme Court, stated that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”[1] In so doing, he recognized a “right to privacy” in the Constitution that extended from the combination of the right of association, the right against quartering troops, the right to be free of unreasonable searches and seizures, and the right against self-incrimination. But the Court did not stop there.

Seven years later, the Court extended the “right to privacy” to encompass unmarried persons’ right to contraceptives.[2] “If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible.”[3] In the seven years separating the cases, five new justices were seated on the Supreme Court: Thurgood Marshall, Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. Other than Marshall, all of these were appointed by Richard Nixon and were presumably expected to uphold conservative values by those who appointed them and yet only one justice dissented (Burger) and on an unrelated issue (the person convicted for distributing the contraceptives was not a licensed doctor or pharmacist).[4] Indeed, in his dissent, Burger stated, “I do not challenge Griswold v. Connecticut . . . despite its tenuous moorings to the text of the Constitution, but I cannot view it as controlling authority for this case.”[5] Astoundingly, Justice Stewart, an Eisenhower appointee, had dissented in the Griswold case specifically stating that, he could “find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court” and yet he joined in the Eisenstadt Court’s decision upholding the very right he had denounced only seven years earlier. Thus, the conception of a “right to privacy” was ratcheted in place. The story goes on.

The following year, the right to privacy was found to secure a right to abortion in Roe v. Wade.[6] Justice Blackmun,[7] in the opinion he wrote for the Court stated, “This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Again, Justice Stewart, who so strenuously objected to the discovery of a right to privacy in Griswold, followed the Court in Roe.[8]

Twenty years later, the Court reconsidered its previous decision extending to women the “right to abort” their children in Casey v. Planned Parenthood.[9] In the intervening twenty years only three justices that were sitting on the Court at the time of the Roe decision remained.[10] Of the remaining six justices comprising the Court, all were appointed by Republican presidents, and therefore carried with them the expectation of being conservative by those who appointed them, especially considering that Roe turned out to be such a divisive decision in society at-large and remained controversial at the time Casey was decided.[11] Continue Reading »

Looking back, I note that I pretty much took March off from posting (five posts all month). I would resolve to do better, but unless I find that I have something to say in April, I’m making no promises. Sometimes it just seems like you have nothing to add. However, as a result of my relative inactivity, I have accumulated a number of miscellaneous thoughts, none of which warrant an entire post.

Dusty Baker

If you are Edison Volquez or Johnny Cueto, are you watching the calendar for the first day you are eligible to demand a trade? With Dusty’s reputation for destroying young guns’ arms, I have to think these guys are counting the days until free agency.

On the same topic, a friend recently sent the following question: “do you think Dusty favors black players?” I had to think about this for a minute. I know that Dusty has a tendency to favor players, usually for inexplicable reasons. (Can anyone give me a justification for the amount of PT Neifi Perez had under Baker?) The list of players that come to mind does nothing to dispell the question: Neifi Perez, Jose Macias, Corey Patterson, etc. Now he is all gigged about the prospect of bringing Sheffield to Cincinnati. Is there anything to this?

The Federal Reserve

The seed for a post has been floating around my head for a few days, but doesn’t seem to be developing into anything worthwhile. The seed is this: Conservatives tend to look askance at the Fed as an unaccountable (sometimes sinister) organization with an inordinate amount of power. Any number of conspiracy theories center on the Fed’s dealings and potential to make mischief. But, what is the alternative? Giving the power to regulate money to Congress? Thinking about that prospect makes my knees weak and causes me to break out in a cold sweat. Can anyone think of any organization that Congress runs well? Hell, it can’t even manage its own cafeterias profitably. Or maybe we should just kill it altogether.

Last weekend Timothy Geithner appeared on Meet the Press and George Stephanopoulos’ shows. Steph asked him if he was worried about inflation. Geithner quickly answered, “That will never happen.” He went on to add that the Federal Reserve would never allow it. That seems to me to be too glib by half. Paul Craig Roberts has a piece (not all of which I agree with) that spells out the peril that we face due to all of Obama’s (and Bush’s before him) spending. I recently finished rereading Milton and Rose Friedman’s Free to Choose, and I have to agree with Roberts that inflation is a looming spectre (although I do not share his prescription for raising tariffs) that is going to be painful to combat. Of course, that pain will occur after Obama is a mere footnote.

On a similar note, I thought George’s interview was much better than David Gregory’s. Boy, do I miss Russert.

Barack Obama and Foreign Policy

Is he really as bad or worse than Bill Clinton was? The Obama administration is now calling for “global oversight” or corporate regulation, so as to end corporate regulatory arbitrage. Does he mean that Brussels bureaucrats should have control (or even just a say) over how “American” corporations are run or how the U.S. government intends to regulate them? Yikes.

And, did Barack Obama really just supplicate to the Saudi king?

Answering my own question

It looks like the answer is that we have not yet hit the bottom. Today, the unemployment numbers jumped again to 8.5%. Do we start printing the “Obama Lied” bumper stickers yet?

Iowa? Really, Iowa?

It appears that the justices in Iowa have legislated gay marriage for Iowans, making them the third state to do so. So much for separation of powers in the Heartland. Coming to a state near you…

On Thursday, the House of Representatives voted 328-93 to impose a 90% tax on recipients of bonuses from taxpayer-supplied bailout monies. It is nice to see Congress suddenly concerned about taxpayer money for a change, or even that they recognize the money as coming from the taxpayer and not belonging to the government.

I suppose before I jump off into my rant, it is required that I offer the obligatory distancing speech from AIG. Here goes: What AIG did was reprehensible and there are plenty of bad actors among the leadership of that company that paying bonuses was questionable at best. Many of them don’t deserve bonuses for the harm their actions have wrought. However, I would stop short of suggesting that these execs fall on their swords.

Having said that, what in the hell was the House thinking? Sen. Christopher Dodd inserted a provision in the bailout contractually obligating AIG to pay bonuses to its executives (although Dodd is now pointing at Geithner as the guilty party, either way…). As a result, AIG paid out $165 milllion worth of the $173 billion it received in the bailout. (For those who don’t have a calculator handy, that’s less than 1/10th of 1%). The company was contractually obligated to make the payments and the Senate Banking Committee and Treasury Department were well aware of the fact. But, when folks like Barney Frank heard that AIG was paying out bonuses to its execs, the spittle began to fly and politicians across this great land began to grandstand and demogogue. They so whipped themselves into a frenzy, that they thought nothing of passing a bill of attainder in the House to recoup 90% of the bonuses. After all, let us not forget who that money really belongs to (and the right answer is not taxpayers). If AIG is going to try to give that money to people who are politically toxic, Congress has an obligation to reassert its authority over those funds – no matter how unconstitutional the measure it has to adopt.

The one comforting thing I think we can all take from this is the certainty that we can trust that this is limited to the bailout money. We should not worry that contracts have been imperiled by Congress’ act. We should go about our daily business entering into contracts freely, secure in the knowledge that, at least as long as the politicians approve of both parties to a particular contract and don’t perceive that any politically disfavored person is being enriched by the contract, that your contracts are perfectly safe from government interference.

On the way home from work this evening, I tuned into Neal Boortz’s radio program (funny no one else seems to be reporting this) and a caller asked Neal if he’d heard that six different state legislatures had proposed resolutions declaring their understanding that the federal government is limited by the Tenth Amendment. I have found one such resolution under consideration in New Hampshire: House Concurrent Resolution 6. The full text is as follows:

HCR 6 – AS INTRODUCED

2009 SESSION

09-0274

09/01

HOUSE CONCURRENT RESOLUTION 6

A RESOLUTION affirming States’ rights based on Jeffersonian principles.

SPONSORS: Rep. Itse, Rock 9; Rep. Ingbretson, Graf 5; Rep. Comerford, Rock 9; Sen. Denley, Dist 3

COMMITTEE: State-Federal Relations and Veterans Affairs

ANALYSIS

This house concurrent resolution affirms States’ rights based on Jeffersonian principles.

09-0274

09/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Nine

A RESOLUTION affirming States’ rights based on Jeffersonian principles.

Whereas the Constitution of the State of New Hampshire, Part 1, Article 7 declares that the people of this State have the sole and exclusive right of governing themselves as a free, sovereign, and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled; and

Whereas the Constitution of the State of New Hampshire, Part 2, Article 1 declares that the people inhabiting the territory formerly called the province of New Hampshire, do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign and independent body-politic, or State, by the name of The State of New Hampshire; and

Whereas the State of New Hampshire when ratifying the Constitution for the United States of America recommended as a change, “First That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid are reserved to the several States to be, by them Exercised;” and

Whereas the other States that included recommendations, to wit Massachusetts, New York, North Carolina, Rhode Island and Virginia, included an identical or similar recommended change; and

Whereas these recommended changes were incorporated as the ninth amendment, the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people, and the tenth amendment, the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people, to the Constitution for the United States of America; now, therefore, be it

Resolved by the House of Representatives, the Senate concurring: Continue Reading »

An Idaho man may be charged with murder for allowing his two young children to walk in icy cold and snowy weather. The man was en route to the children’s mother’s home when his truck became stuck in the snow.  The man allowed his two children to walk the remaining ten miles to their mother’s home.  After freeing the truck, the man returned home.  Later, the boy was found delirious and freezing near a truck stop.  The daughter was found dead from hypothermia in a separate location.

This is a tragic story indeed.  The father is definitly repsonsible for the welfare of his children and allowing them to walk that far in the snow and cold is criminally reckless.  This man must be distraught.  Charging him with murder only makes the situation worse.  Let’s hope the authorities in Idaho have some decency and common sense.

I have, on two separate occasions now, advocated for the formation of a third party. Not surprisingly, my fellow blogger, Bill, has taken me to task for my previous comment that voting for a third party could imperil one’s soul. Therefore, it is properly incumbent upon me to detail why I think voting for a third party in the future is, in any way, different going forward than it was in the late election.

First, the late election was notable for the stark contrast between the candidates’ stances on abortion. On the Democratic side, there was a candidate who favored infanticide for alive-born aborted babies. On the other side was a candidate who professed to be against abortion (although I recognize that his voting record was ambiguous). In light of the differences, the outcome of the election made one’s vote particularly important, given the stakes.

I wrote a post wherein I supported the decision of a local priest to withhold the Eucharist from persons who had voted for Obama. My argument proceeded along the lines that because of the peculiar situation of the United States, where the people are their own rulers, our votes take on special meaning. The basis for this claim, as I alluded to, was St. Paul’s comments in Romans:

1 Let every person be subordinate to the higher authorities, for there is no authority except from God, and those that exist have been established by God.

2 Therefore, whoever resists authority opposes what God has appointed, and those who oppose it will bring judgment upon themselves.

3 For rulers are not a cause of fear to good conduct, but to evil. Do you wish to have no fear of authority? Then do what is good and you will receive approval from it,

4 for it is a servant of God for your good. But if you do evil, be afraid, for it does not bear the sword without purpose; it is the servant of God to inflict wrath on the evildoer.

5 Therefore, it is necessary to be subject not only because of the wrath but also because of conscience.

6 This is why you also pay taxes, for the authorities are ministers of God, devoting themselves to this very thing.

7 Pay to all their dues, taxes to whom taxes are due, toll to whom toll is due, respect to whom respect is due, honor to whom honor is due.

Continue Reading »

The topic of the Civil War and some of the issues surrounding that conflict have arisen on this website on a couple different occasions, but I don’t believe we’ve ever hashed out whether the states possess the right to secede.

I think it can be surmised from my earlier argument (the breach of contract discussion) that I believe that state’s do possess the right to secede. It is inherent in the nature of contract that, the parties may withdraw from the compact upon a showing of breach or by mutual consent. The text of the Declaration of Independence argues strongly in favor of the idea that states possess the right to withdraw from their voluntary compacts with the federal government.

Of course, my argument was that the South did not have cause to withdraw and that it was, in fact, the South that breached its obligations under the contract. However, had the federal government breached, I believe a state would be jusitified in unilaterally declaring rescission as the remedy.  Loss of an election in itself would not provide cause. But, as we have seen from the Declaration and subsequent Revolution, if one party to the contract fundamentally changes the terms, that can provide cause. The lesson, of course, is that it is incumbent upon the national government to act with restraint and within the confines of the Constitution in order to preserve the Union. Acting beyond the sanction of the Constitution would provide a state with a claim of breach and would provide cause for separation.

Some might argue that the moment for restraint has long passed and that the contract on which this Union is premised has been irredeemibly breached. I think there is still an opportunity for reform so long as the parties remain in parity. But, that only makes the call for reform all the more urgent. I have argued that it appears that the necessary reform can only come from the formation of a third party. Neither of the current major parties appear to have the ability to exercise restraint, to honor individual freedom, or to respect the sovereignty of the states.