Anarchy X: The Tenth Amendment
Posted: September 19, 2012 Filed under: Anarchy X, Politics | Tags: America, anarchy, Anarchy X, Bill of Rights, Commerce Clause, Constitution, James Madison, politics, states' rights, Supreme Court, tenth amendment 1 Comment“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.”
In many ways I consider this to be the red-headed stepchild of the Bill of Rights. Nobody really wants it except when they do, and the only time they want it is when they want to use it as a weapon against somebody else. It only exists as a means of quieting down people who were nervous about centralized power, and since then it’s done little to no good despite the lofty goals it was originally envisioned to provide for.
The original purpose of the amendment was, as James Madison phrased it:
[F]rom looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.
Considering that within the twentieth century we were witness to Supreme Court cases that allowed the federal government to decide how much wheat you could grow on your own land for your own personal consumption (Wickard v Filburn), your house can be taken for private use (Kelo v City of New London), and the federales can kick in your door and snatch up your medicinal marijuana crops, even if it is legal to grow and use in your state (Gonzales v Raich). And these are all just abuses of the Commerce Clause, but I’ve harped on that one before. What I find far more interesting is the abuse of the other side of the equation.
The concern, as I see it, that was being addressed by the tenth amendment was not one of states being able to retain the powers they had enjoyed up to this point. Rather I think it is, as Madison points out, a continuation of the thread that runs throughout the Constitution and the rest of the Bill of Rights: people who had fought to free themselves from what they perceived to be an aggressive, oppressive regime and not wanting to re-create it in the new government they were now defining. One of the chief concerns and problems they had seen was that, being so far away from the seat of power, their concerns were not addressed and their complaints were ignored, and they believed that their local (and by extension state) governments would be more responsive in the event that government action would be needed at all (hence that little clause at the end “or to the people”).
This was never intended to be a carte blanche for state governments to violate the rights of citizens where the federal government couldn’t, and yet so many times that is exactly how some groups have attempted to interpret it. Waving the banner of “states’ rights”, they have tried to circumvent laws and statutes they didn’t like, usually ones that were intended to protect the rights of minority populations. While there are those who attempt to argue the historical implications of the North versus the South and economic issues that extend beyond slavery (some of which does have validity), the core of the issue was that Southern states wanted slavery and Northern states didn’t. This has come forward to us through the years as Jim Crow laws, “separate but equal”, and other forms of government imposed racism, which are times when federal power should intervene to protect the rights of minority populations against the will of the majority in a given area.
Unfortunately this same sort of abuse flows downhill in many ways; states use their power to impose all sorts of laws on their people, such as smoking bans, labor laws, property usage laws, and other means of restricting the free use of property and control over one’s own body. These laws can be and often are popular in the localities where they are passed, or at least popular enough with a large enough majority of the citizenry for that given issue (hence the phrase “tyranny of the majority”). Unfortunately there doesn’t seem to be as much of a groundswell from either the left or the right as yet to protect against these abuses.
I believe the original intent of the tenth amendment was to try to bring power closer to the people. The idea was that each state would have a limiting document similar to the Constitution (as I believe they all do) that was decided upon by the people of that state; by bringing power closer to the people, it would be more responsive, but also the limits on state power would have the same effect as the limits on federal power. This recursive limitation would flow down the chain of government power, so that ultimately the people would have power over themselves. Instead what we are finding is a constant tug of war between government actors at the state and federal level to determine who gets to make the decisions about our lives, whether any given action falls under ” powers … delegated to the United States by the Constitution” or those ” reserved to the States respectively”. Somewhere along the line the last bit about “the people” got edited out.
Anarchy X: The Ninth Amendment
Posted: September 12, 2012 Filed under: Anarchy X, Culture, Politics | Tags: America, Anarchy X, Bill of Rights, Constitution, culture, Federalists, freedom, Hobbes, leviathan, liberty, ninth amendment, philosophy, politics Leave a comment“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
At last we come to what I have to admit is my favorite amendment. If for no other reason, I love this amendment because it is the final answer to every question asked by most of the self-proclaimed “strict constitutionalists” I have met. In most cases these would be people who are looking for excuses to legislate their own petty meanness on the rest of the world, and when you call them on it, they have a standard fall back: their shield, their shelter, their raison d’étre almost universally seems to consist of “where do you find that right in the Constitution?”
Right here. Here it is. In the same way that the justice system lays the burden of proof on the prosecution, and for many of the same reasons, so too is the burden of proof that the government, that we the people have the right to take an action against other people. For my money this is the defining feature of the Bill of Rights, and in many ways the Constitution itself.
It is worth noting that the Ninth Amendment only exists in large part because of the debate about the Bill of Rights itself; by the very notion that there should be no need to specifically enumerate rights that would accrue to the people in a country where the powers of the government would be spelled out quite specifically, and the government would have no further or additional powers beyond those that had been granted to it by the very document that was being amended. It’s a nice thought. Any student of history, classical or modern, political or otherwise, should know it’s also a naïve one. So should anyone who has read Leviathan by Thomas Hobbes.
Call me cynical if you must, but it is my belief born out of study and experience that any human system built for managing people will do two things: grow and accrue more power unto itself. It is not (necessarily) some corrupt plot, it is simply the spontaneous order of human systems. Governments are designed to govern; that is their purpose. They can only do that so long as they are either stable or growing. No system can remain viable if it is stagnant. Therefore, for a government to remain viable it must continue to grow, and the only way for a government to grow is to become more powerful, and thereby more intrusive.
Having delineated specific areas and ways in which the government can’t grow in the first eight amendments, there are two possibilities left. The first is the Federalist assertion of a sort of “gentleman’s agreement” of government, that the rights of the people would be implicitly protected simply by virtue of having delineated the powers the government has. Which has worked so well up to now. The second possibility is finding new and interesting ways to interpret the powers granted by the Constitution, including simply ignoring any rights people might reasonably expect to enjoy, including those grounded in the common law tradition from which the Constitutional government evolved.
The modern upshot of this is widespread. As society has evolved, we have changed in our expectations of what it means to be a part of that society; we have even (thankfully) changed in our attitudes and beliefs about what it means to be human. We have recognized and defended rights along the way that are not specifically enumerated in the Constitution, but that are grounded in the same tradition as the other rights that are. One example is the right to privacy, which is often assailed by the aforementioned “where do you find that right in the Constitution?”
Let me be clear: I believe that all the rights that are defended and provided for by the Constitution, regardless of what philosophical approach you may take to it, derive from the following:
We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America.
That having been said, I see nothing that runs counter to a right to privacy. On the contrary, privacy in one’s person and effects seems to me to be eminently just, promotes tranquility, adds to the common welfare, and is one of the greatest blessings of liberty I can imagine. If you don’t believe me on that last point, throw wide the settings on your Facebook profile and wait five minutes.
Not everything people claim as a right truly is one; I get that. But to say that it must be spelled out to exist is absurd. The law is and always has been a lagging indicator of the culture at best, and a drag on the culture at worst. Far better to put the burden on those who would control us than on those of us who would be free.
Patriarchal Misogynistic Tendencies
Posted: September 7, 2012 Filed under: Culture, Politics | Tags: America, culture, feminism, men, misandry, misogyny, patriarchy, philosophy, politics, relationships, women 11 CommentsRecently I’ve been reading a lot more internet chatter about feminism, which I can only take to mean it’s on the rise again. This wounds me greatly, as I had hoped we lived in a Post sort of world. You know, post-racial, post-gender, post-political, Post brand cereals, whatever. But I guess that ship has sailed, and we’re right back to having the same arguments that we’ve been hashing over (and failing to reconcile) for decades.
So what does this mean for me personally? To be honest it means I’ve had to confront my own patriarchal misogynistic tendencies. Yes, I admit that I have them. Of course I have them. C’mon, I was born in the mid-seventies and educated in public schools. I’m lucky I can even spell “patriarchal misogynistic tendencies” let alone admit having them. And I do. But just like paranoid schizophrenics can still have enemies, misogynists can still be right from time to time.
Here’s my favorite example: I’ve had a crazy ex-girlfriend or two. Now don’t get me wrong on this; I actually have several exes, and for most of them I hope I hold the place of “pleasant memory”, and I more likely hold the place of “bullet, dodged.” Most of those ladies I don’t even think of anymore, and while I may have in my callous youth said some unkind things about them I at least have enough class to regret it. But the fact is I do have one or two truly crazy ex-girlfriends. I even have objective witnesses of both genders to back me up. But here’s the problem: everything I’ve seen in the feminist orthodoxy says that’s wrong. That somehow I’m as much to blame as they are, if not more so, simply because I was a willing participant in the relationship. Boy, that’s not blaming the victim much, now is it? Only I can’t be a victim, because of my gender. That’s one.
My next favorite is things like quotas, preferences, and government set-asides. There are plenty of these designed to help women get ahead in school, in business, and in civil service. Setting aside the question of their efficacy, I wonder about their essential morality. Is this just? Is it right to single out one gender and favor them over another? And if so, for how long? Sure you may feel you are correcting some sort of societal imbalance, but when there’s no limit set the assumption is that injustice is either endemic to society or the individuals that comprise it (which are basically one and the same). With women graduating from college at higher rates than men and getting more advanced degrees than men these days, have we reached the day we no longer need these set asides? If not, will we soon? Will we ever? That’s two.
And hey, for the third issue, let’s go for a hat trick of issues that all tie together: divorce, custody, and child support. Despite the great gains that have been made by women in the workplace and men in the home, the default assumption that is near impossible to overcome in any divorce proceeding is that a man should support a woman “in the style she has become accustomed to”, and if there are kids they will almost always go to mom unless dad has absolute iron-clad proof she is a drug-addled child molester. In that case the kids will probably wind up with her parents. Fathers without custody will be tasked with child support (don’t get me wrong, I’m all for that) and hunted down like the dogs they are if they miss a single payment (a bit draconian, but hard to argue with), and in the rare event a mom doesn’t have custody she has to… well, how often are they ordered to pay child support? And when was the last time you heard the phrase “dead-beat mom”? And please don’t feed me some line about women being “nurturers”. Remember, we don’t assign gender roles in this classroom. So that’s three.
Last but not least is a real touchy one and the one I expect to catch the most hell over, but I feel the need to say it since nobody else will. First a clarification: I am not taking a stance on abortion here. That’s another post entirely. I do have an opinion, a strong one, but I don’t want to cloud the issue with that argument. Let’s simply take as given that Roe v Wade is the law of the land. So women have the right to decide, once they are pregnant, whether or not they will have a child. What right do men have in this arrangement? If he disagrees with her choice, either way, he is powerless. Completely at her mercy. He can beg, plead, persuade as best he might (and please don’t suggest threatening because I will gladly see a man in jail for that), but he has no recourse before the law. If you believe that is fair, turn the situation around. Put a woman in ANY situation in which she is bound for almost twenty years by a single decision that a man makes on her behalf, even if he is bound by that same decision, and tell me that it’s still fair. Here’s an alternative: let him surrender his parental rights if he doesn’t want the child. It’s not everything, but it’s more than nothing.
Life’s not fair. I get that. But why is it that women get to cry “life’s not fair” and call it a movement? Why do men have to stand by on the sidelines and simply accept the slow chipping away at our dignity and all the good we have in order to make the world an acceptable place? There is injustice in the world, this I understand; that is a fact that is not limited by gender, ethnicity, or politics, and we should all stand against it. But robbing from Peter to give to Paulina does not create a better world; injustice is not the answer to injustice; misandry is not the cure for misogyny.
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Anarchy X: The Eighth Amendment
Posted: September 5, 2012 Filed under: Anarchy X, Politics | Tags: America, anarchy, Anarchy X, Bill of Rights, cruel and unusual punishment, death sentence, justice, philosophy, politics 1 Comment“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Of all the amendments to be interpreted and re-interpreted over the history of our nation, it may be the eighth amendment that has seen the most action, and is still in the greatest contention to date. Even the first and second amendments haven’t evolved as much, since they do not touch so deeply on the basic principles of what make us a society and what makes us human.
It is the specific clause of “cruel and unusual punishment” that seems to be the sticking point in most cases, and it is the one that has given me the greatest personal turmoil. In my youth I was a hardliner in many ways, for while I believed very much in the idea of a justice system that gave every possible benefit to potential defendants, I also believed that prisons were places of punishment, not rehabilitation. I also was very strongly in favor of the death penalty, in particular in cases of the most heinous crimes. I was convinced that there were some people the world would be better off without, and it was the right and the duty of society to deal with those people in the most straightforward manner possible.
I do not write these words with glee, nor do I write them with contrition. Rather I write them so as to set a basis of understanding of my own personal journey of discovery for those who may feel as I did then, or who feel differently than I do now. My hope is that by understanding the path that I have taken you may in some way understand why I believe as I now do, and even if you still disagree you may at least take some time to consider why you believe what you believe.
In terms of the treatment of prisoners, I used to believe they should be treated no better than the minimum necessary for survival. Food, shelter, and clothing were sufficient; after all, they had already proven they were not willing to contribute sufficiently to society to be a part of it, so why should society pay to keep them in any better style than the least necessary? I saw nothing cruel in this, although it might seem vindictive; after all, if I had to work to support myself, they were at least better off than I was. I have come to realize I at least have something they do not; I have the freedom to choose what I want, and if my choices are constrained by my circumstances, then so are theirs, and theirs are even more artificially constrained by having their liberty taken, even if that is the result of their own actions.
Further, it is a short-sighted thing to suggest that we should reduce humans to the level of nothing but animals, with nothing to fill their days but food, shelter, and the barest of covering. If they have nothing to strive for, no hope that tomorrow will be if not better than today than at least different, that is a cruelty and inhumanity all its own. It also breeds anger and contempt toward society among those who will someday rejoin that society; even if you do not believe prison is a place for rehabilitation, you must at least recognize the potential to create better or worse citizens among those who come out. Providing even simple things like books, athletic equipment, and exercise space allows prisoners a chance to engage body and mind. Television and internet access, even if it is monitored and controlled, provides a connection to the outside world that keeps them engaged and may even keep ennui and desperation from setting in. If nothing else, it shows in us a level of humanity that we condemn others for lacking.
The final hurdle for me was the death penalty. Setting aside the numerous studies showing the uneven and unjust applications and use of the death penalty, which no rational or honest person should, as well as the studies showing the economic unfeasibility of it, which counter any argument on those grounds; I feel there is an ethical case to be made for the elimination of the death penalty. It is not a simple case, nor is it an absolute one, but I believe it needs to be made.
The justification for the death penalty, if there is one, is that it is the ultimate penalty, and it is only handed out for the most heinous of offences, those for which there can be no lesser price. Even if one were to accept that premise, there are other factors to consider which make that untenable. I do accept that the death penalty is the ultimate penalty, for no matter how many years you spend in prison, there is always the hope for redemption, and there is always the chance of parole. There is no coming back from the grave.
In a truly fair justice system, we would ensure two things: first, that the penalty matches the crime; and second, that the bar for a guilty verdict matches the potential sentence. Obviously this would make for a convoluted and difficult system, as we would have many different potential hurdles for prosecutors to reach depending on the severity of a crime, so instead we settled on one that seems to work in most cases and that, at least at first blush, favors defendants: “beyond a reasonable doubt”. But is this enough when a person’s life is on the line? Is “a reasonable doubt” sufficient to make a person pay the ultimate price?
Absolute justice calls for absolute certainty. That is the conclusion I finally came to. Regardless of how you might feel about the morality of the death penalty in the abstract, or even in specific cases where you are absolutely sure someone is guilty, is it enough? Extraordinary cases make for bad law. Or to put it another way, are you unable to think of a single time in your life when you were absolutely sure about something, only to find out you were wrong? Care to bet your life on it?
Care to bet someone else’s?
I don’t. Not anymore.
The Non-Presidential Debates – An Open Challenge to Democrats and Republicans
Posted: August 31, 2012 Filed under: Politics | Tags: 2012, America, culture, debate, democrats, politics, presidential race, republicans Leave a commentAs we continue to roll through the election season, political debate seems to have devolved into the mere shouting of talking points, playing of sound bites, and worst of all, posting of mindless internet memes on social media sites. In an effort to change up the dynamic a bit, I thought I would challenge my friends on both sides of the aisle with a chance to defend some of their positions that I find a little contradictory, difficult to understand, or just plain nutso. Considering that I come from a direction that both sides tend to consider equally insane and out of touch, I think that makes me a reasonably fair moderator in that regard.
So, without further ado, I present my list of questions, in no particular order. I have alternated them, one for each party, although anyone may feel free to jump in and defend any position. I only have two rules. The first is that you can only initiate a comment string with an explanatory comment. Simply adding “yeah, that makes no sense!” doesn’t enhance the discussion. The second is that replies to comments be respectful or they will be deleted. Debate is encouraged, trolling is not. I have a banhammer and I’m not afraid to use it. Now, let the games begin!
1. Republicans: Explain to me how gay marriage is in fact a danger to traditional marriage. Cite specific examples without referring to religion.
2. Democrats: Show me specific studies that prove the idea that banning guns (or significantly restricting gun ownership) actually makes people more safe. Account for crime data for Chicago and Washington, D.C. vs. similar sized cities while they had gun bans in place. Also account for countries that have more restrictive gun laws and higher rates of gun violence than the United States (I can cite sources if needed).
3. Republicans: Explain how drug prohibition, specifically marijuana prohibition, makes us safer than the alternative. For bonus points, justify the cost of enforcing the drug war while cutting spending on schools, health care, and space exploration.
4. Democrats: Explain why people have a right to free health care but don’t have a right to purchase a 32 oz soda or be given baby formula when they have a new child.
5. Republicans: Why is it acceptable to force people to use American labor by preventing immigrants from working in this country regardless of their status, but unacceptable to force them to use union labor?
6. Democrats: Why is it acceptable to force people to join unions in order to work in their chosen field but unacceptable to deport illegal aliens working in America unlawfully?
7. Republicans: Why is it unacceptable to pass a major new healthcare entitlement when you’re a Democratic president (the Affordable Care Act), but it’s perfectly acceptable to do so when you’re a Republican president (the Medicare Prescription Drug, Improvement, and Modernization Act)?
8. Democrats: Why is racial profiling bad but socio-economic profiling good?
9. Republicans: Are you seriously still denying man-made (or at least man-contributed to) global warming? Seriously? No, seriously?
10. Democrats: Conceding that global warming exists, are you really willing to give up all the trappings of civilization, including homes, food, clothes, and your iPhone in exchange for reducing the temperature in the atmosphere by 10 degrees Celsius by the end of the century? If not, what compromises are you prepared to make, and where do you draw the line?
11. Republicans: Why is it that when poor people try to get more money for social programs you refer to it as “class warfare”, but when rich people try to get tax cuts you refer to it as “the free market in action”?
12. Democrats: Assuming you favor progressive taxation, and in particular a strong tax hike on “the wealthy”, please tell me how much of your personal time and money (percentages please, not raw numbers) you have spent helping people who are not as well off as you are, unless you are certain there is nobody in the world who is worse off than you. Alternatively, cite every occasion in which you have NOT taken a tax deduction to which you were entitled.
13. Republicans: Make an honest effort to set aside your preconceived notions and talking points. Now spend ten minutes seriously imagining America thirty to forty years from now, with special attention being paid to the people who will be working in and running the place. Once you complete this exercise, please list any and all national priorities that should come before education.
14. Democrats: Make an honest effort to set aside your preconceived notions and talking points. Now spend ten minutes seriously remembering World War II, the Cold War, and 9/11, with special attention being paid to the loss of life and the horrors perpetrated by our enemies in those conflicts. Once you complete this exercise, please list any and all national priorities that should come before national defense.
Bonus question for either side: Explain to me why your restrictions on individual freedom are good while your opponent’s restrictions on individual freedom are bad. Use 5,000 words or less.
Anarchy X: The Sixth Amendment
Posted: August 22, 2012 Filed under: Anarchy X, Politics | Tags: Anarchy X, Bill of Rights, drug war, game theory, law, nonviolent offenders, overcriminalization, politics, prisoner's dilemma, right to an attorney, sixth amendment, speedy trial, unintended consequences, war on drugs Leave a comment“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
I’m gonna skip right over the numerous ways both the Bush and Obama administration have violated this one since 9/11, since that horse has already been beaten into the ground by roughly everybody (although I do find it interesting that the noise level about it seems to have dropped off since roughly January 20, 2009). The fact is there are still serious issues in our country that have come about due to policy decisions that are tangential to this amendment, some of which are only obvious after the fact due to the law of unintended consequences.
First we have the issue of a speedy trial. This is by definition a slippery one, since what constitutes a “speedy” trial is a qualitative measure, not a quantitative one. Is a week to prepare a defense long enough? How about five years? How long is too long? Either way you have issues, but it doesn’t much matter, because the justice system is getting more and more crowded each day. A lot of this can be attributed to the growth in nonviolent offenders. Much of this can be attributed to the War on Drugs (yes, I’m back on that old tune), but there is also the criminalization of other activity to consider as well.
As The Illustrated Guide to Criminal Law so adeptly shows, there has been a large increase over time in the number and scope of laws that do not require mens rea, or an accompanying mental element to match the actual act of committing a crime. I can’t go into the details of overcriminalization nearly as well as The Illustrated Guide does, so I highly recommend visiting that link; it’s highly informative, very entertaining, and a little scary. It covers both regulatory agencies that pass regulations that include criminal as well as civil penalties for violations, as well as my personal favorite, politicians who legislate personal behavior (speaking of which, can someone in NYC run to 7-11 and grab me a Big Gulp, a doughnut, and a pack of smokes?)
The upshot of all of this is that we end up with a criminal justice system that is bogged down with defendants, many of whom can’t afford an attorney. Let’s face it, if you could afford an attorney, chances are pretty good you wouldn’t have gotten caught in the first place, because you would have had someone else doing the dirty work for you (it takes a lot to bring down a Bernie Madoff, not so much to bring down a Joe Shmoe). This brings us to the Public Defender’s office. Now before you think I’m about to tear into yet another government agency just trying to do their job, I’m not. I actually have a lot of respect for these people. The don’t get paid much, they have huge case loads, and they work ridiculous hours, usually trying to defend people who for the most part don’t stand a chance. That’s not to say most of their clients are guilty, but you would have a hard time convincing me that more money doesn’t buy better expert testimony, better access to research tools, more paralegals to work your case, and so on. The fact is Justice may be blind, but that doesn’t mean she doesn’t have a palm just waiting to be greased.
So what’s an attorney to do? With a huge case load, a small chance of winning in most cases, and huge mandatory sentences having been imposed by ill-considered legislation in the past, there’s only one out: focus on the ones you can save and get the best deal you can for everyone else. That’s why plea bargains have become so popular. There are just a few problems with that.
Number one, they only work if you have something to trade. Remember that regulatory criminalization I mentioned earlier? Unless there’s someone higher up the food chain you can point a finger at (Bernie Madoff), you’re the guy stuck holding the bag. Or if you just happened to be picking up a buddy and had no idea he was holding. Either way, you’re outta luck.
Number two, plea bargains are a poor substitute for justice. With those previously mentioned harsh sentences, all the DA has to do is get an indictment for a particularly nasty crime (like say intent to distribute, even if you had no such intent), and you’re facing twenty years. Suddenly a plea bargain for a year in jail sounds like a sweet deal indeed, even if you think you have a fair chance of beating the case, just because the cost of losing is so high. That’s a real-life application of game theory, one of the most famous examples of which is (ironically) the Prisoner’s Dilemma.
Third, and maybe this is just me, it smacks of a witch hunt. Whether it’s Salem 1692 or Washington D.C. 1954, our country doesn’t have a very good track record with this sort of thing. Turning people against each other in order to avoid further punishment may be a time-honored tactic, and it has proven to be efficacious, but it is not without its dangers. It should be used sparingly, as a scalpel and not a bludgeon.
Nine Ravens
Posted: August 20, 2012 Filed under: Humor, Politics | Tags: America, culture, Edgar Allen Poe, humor, poetry, politics, pop culture, popular culture, Raven, satire, Supreme Court Leave a comment(With apologies to Edgar Allen Poe)
Once upon a web page I saw, that was dedicated to law,
Raven sitting on end of branch by Dave Menke, U.S. Fish and Wildlife Service
(I do not recall if it was blog or wiki or something more,)
While I tried to keep from snoring (face it that stuff’s kind of boring),
There came a tapping, as of someone rapping at my study door.
” ‘Probably my wife,” I mumbled, “tapping at my study door;
Only this, and nothing more.”
Ah, distinctly I remember, it was a bleak and cold November,
The High Court’s term starting on the first Monday month before.
Desperately I wished the morrow; foolishly I sought to borrow
From Jack Daniels surcease of sorrow, sorrow caused by culture war.
Caused by the endless bickering that had been dubbed the culture war,
Discussed here nevermore.
And the monitor light glowing with new lawsuits overflowing
Thrilled me—filled me with fantastic terrors never felt before;
So that now to stop the throbbing of my head, I stood there sobbing,
“It’s just the puppy trying to get in at my study door,
It must be my little puppy pawing at my study door.
That must be it; nothing more.”
Eventually I took a nip, with liquid courage got a grip,
“Whoever’s there,” I said, “I hope you don’t mind about before;
But the truth is I was… napping, when you came so gently rapping,
When you came so gently tapping, tapping at my study door.
Wasn’t really sure I heard you.” Then I opened wide the door;
Darkness there, and nothing more.
I don’t know how long I stood there, staring out at nothing but air
Questioning my sanity like so many who came before;
But there was no sound but silence, and my only sign of guidance
And the only words there spoken were the whispered words,
“Culture war?” This I whispered, and an echo murmured back the words,
“Five to four!” Just this, and nothing more.
Back into my study turning, all my heart within me burning,
Soon again I heard a banging, something louder than before,
“Huh,” I said, I thought that I’d seen something just above my flat screen.
It’s outside the study window, so this mystery I’ll explore.
Let me just chill out a minute, and this mystery explore.
“It’s the wind, and nothing more.”
So I opened up the window, and suddenly what do you know?
Right in comes these nine ravens that I had never seen before.
Not a word or gesture to me; not a single “An it please thee”;
But with mien of lord and lady, perched beside my study door.
Perched upon a bench that was sitting inside my study door,
Perched, and sat, and nothing more.
Decked with feathers black as robes, sitting with patience to match Job’s,
I attempted to establish some semblance of rapport.
“An unkindness some might call you, yes, and a conspiracy too,
To be honest that’s the sort of name-calling that I deplore.
Tell me, pray, how I should know you, oh great Scions of Baltimore.”
Quoth the ravens, “Five to four.”
I was stunned at these ungainly fowl to hear discourse so plainly,
Though their answer little meaning, use, or relevancy bore;
For we cannot help agreeing that no living human being
Ever yet was given help by birds within their chamber door,
Birds or beasts sitting upon their bench within their chamber door,
With such words as “five to four.”
But the ravens, having spoken, would not let that be their token,
Instead they had to further discourse on matters more and more.
Topics timely and political; both trivial and critical;
Till my rage was near biblical, “I should show you to the door!
I want none of this, please, leave me be, get out of here, no more!”
Then the birds said, “Five to four.”
There’s nothing that they won’t debate, from abortion to speech of hate
Taking their sides from established ideologies of yore.
Though they might each strut and posture, give an enigmatic gesture,
Make us wonder if the outcome might be different from before
In the end there’s no cause for surprise about the final score;
The score is 5 to 4.
But the ravens still sat judging, so with grace ill and begrudging
I sat down, tried to ignore them and work as I was before.
But one thing there was no budging, no, never sufficient nudging
To shift the awful balance that had been previously foreswore–
That these awful birds of omen held over from the days of yore
Had doomed us with “Five to four.”
Each single word I was weighing, the game D.C.’s always playing,
Despite myself, taken in by the vile back and forth once more.
On this law there’ll be no bending, the back and forth is never ending,
Though we cry out for unity, it’s victory we look for,
But when that ugly fool’s gold is the prize that we all opt for
Then the prize is, “Five to four.”
Turning then to my oppressors, I became the new aggressor
Unleashing on them all the wrath I had pent up heretofore.
“Were you not all nine delighted when the citizens united
Or you sat in judgment o’er the case of Bush v. Gore?
Uninsured were not deplored, racial preferences galore?”
Quoth the ravens, “Five to four.”
“Jurists!” said I, “all divided!– never one, though sit united!
Whether Donkey sat or Elephant deposited before,
Determined though you are to lead us by example not at all–
In this land that’s so torn by strife– tell me truly, I implore:
What’s the chance for peace and brotherhood–tell me I implore!”
Quoth the ravens, “Five to four.”
Jurists!” said I, “still divided! Still deserve to be derided!
By that space that bends above us–by that God (that you won’t let His commandments be posted in a government building but somehow a six foot tall monument on government property is okay and how are those not blatantly conflicting rulings?) that we all adore–
Tell this soul with strife encumbered, if these days of pain are numbered,
Will the time come when we at last can put out the last flame war?
I beg you, can you tell me I will have the peace that I yearn for?”
Quoth the ravens, “Five to four.”
“Be that phrase our sign of parting, birds or fiends!” I shrieked, upstarting–
“Get thee back unto the night and to Baltimore’s polluted shores!
Leave no writ or other token of the cruel words you have spoken!
Leave my solitude unbroken!– quit the bench beside my door!
Take your damn conspiracy elsewhere and haunt me nevermore!”
Quoth the ravens, “Five to four.”
And the nation stands divided, never to be reunited,
Cursing politicians from north to south and from shore to shore,
Though we think they’ll keep us guessing, ain’t it really quite distressing
We’ve found out as Ackbar warned us that “it’s a trap!” to be sure,
We may all try to hope for change but we see forevermore
That the score stays 5 to 4.
Anarchy X: The Third Amendment
Posted: August 1, 2012 Filed under: Anarchy X, Politics | Tags: America, anarchy, Anarchy X, Bill of Rights, philosophy, politics 4 Comments“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
You don’t hear much about the Third amendment these days. Everyone is more concerned with the Big Five as I think of them (First, Second, Fourth, Fifth, and Eighth) to worry too much about the rest except in theory or in extremis. And why should we? After all, when was the last time the U.S. Army knocked on your door and demanded that you put up a couple soldiers for the night? Doesn’t seem like something we really need to worry about in this day and age.
I like to look a little deeper and consider the philosophical and political ramifications of these things. As I have heard the rights of man explained in many courses and in many ways over the years, there are two approaches. The first, which is more popular (and populist) than I am comfortable with, is that as a member of a community and a citizen of a country, you owe something to your community and country simply by virtue of being a part of it. And no, paying taxes doesn’t cover your obligation. There is a presumption of first claim on your person, on your time, and on your livelihood. This would then naturally extend to a first claim on your belongings, including your residence.
The second way of looking at things is that people are born with certain rights (you might even call them inalienable). These rights exist with or without the presence of a community or a government, and in fact supersede any communal or governmental attempts to restrict or circumvent those rights. This does not mean you have no reason to participate in your broader community or government, but it does put very distinct limits on what can and cannot be asked or demanded of you.
It would seem to me that the Third Amendment more fully supports the latter belief than the former. While there is room in it (that clause “but in a manner to be prescribed by law”) for some impinging on an owner’s right to privacy in their own home, even that is restricted to times of war (and no, I don’t think the Wars on Drugs or Terror count). That being the case, there are several presumptions that flow therefrom quite logically that have a great deal of bearing on our modern lives. Not the least of these is the idea of government restrictions on how we use our own property, whether it is for housing or running a small business out of our own homes. I’m not a fan of zoning laws in general, but so long as there is no material impact on my neighbors that would be distinguishable from any other residential use, why does the government get a say?
While I’m on the subject of businesses, bear in mind that at the time the Constitution was written, for many business owners their business and their home were one and the same, and even now it’s as often a matter of semantics as reality to distinguish between a small business owner’s home and business. So why does the government get to dictate the terms of how that business is run? So long as everyone is there voluntarily, nobody’s rights are being violated. I know, being “forced” to work in an environment that allows smoking is a terrible burden. Far more so than, say, being out of work because the bar you had a job at went out of business when there wasn’t enough trade to support it… or maybe they just had to fire one bartender.
I have heard the counter-argument made, and I think it’s a fair one worth addressing, that if “every man’s home is his castle” you end up in an anarchic state where anytime you set foot on someone else’s property they can simply claim “this is my land, I make the rules, and I say you’re my slave now.” The counter to this is that the right to be secure in one’s home is based on the right of self-ownership, and that right extends to each and every individual. Violating that right in another is to surrender that right for yourself. That is the value I see in having a government in the first place: to defend the rights we each have against all comers, both foreign and domestic. However, the government that strips away those rights is no better than the brigand it is meant to defend against. I for one prefer the brigand; he is easier to bargain with, easier to fool, and if need be, easier to destroy.
Anarchy X: The First Amendment
Posted: July 11, 2012 Filed under: Anarchy X, Politics | Tags: America, anarchy, Anarchy X, Bill of Rights, freedom of religion, freedom of speech, freedom of the press, politics, religion 3 Comments“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Boy, that’s a mouthful, ain’t it? And it covers so much ground in so little space. Enough ground to keep us arguing over exactly what even one clause means over two hundred years later, and there are three distinct clauses that cover three, arguably very different, aspects of life. So why do all of these fall in the same amendment? And what does it all mean, anyway?
For me personally, it’s not just a matter of “these are the most important things, so let’s put them all first.” The entirety of the Bill of Rights was adopted at the same time, so there’s no reason to say any one amendment is more important than the others, and it’s kind of curious to try to mash together a bunch of unrelated ideas and hope they hold together (unless you think the Founding Fathers were the world’s first DJs. Come to think of it… dibs on that name.) There’s a common thread there, if you look past the surface and consider what the purpose of each of those acts is, and what their deeper meaning is and was at the time of the founding of our country.
I believe the First Amendment is about freedom of thought and the expression thereof. To be able to think or believe something is essentially meaningless in a society without the legal capability to express that belief, and each of those clauses covers one of the primary means by which people of the time communicated with each other. Whether from the pulpit or in the pews, by voice or the printed page, or even simply gathering in the town square and letting their voices be heard, these were the ways that people could let their thoughts and beliefs be known. So what are the implications for our modern society of that interpretation?
For starters, I believe that a strict literalist reading is just silly. To restrict the realm of free speech only to the items identified by a two hundred year old document is to assume that not only were the Founding Fathers great authors and statesmen, they were also prognosticators able to see the advances of technology yet to come and said, “Verily, that internet looks most interesting, but mayhap we best restrict the freedom of expression only to those technologies that exist in our day and age, lest we somehow bungle the whole experiment. Harrumph, harrumph.” (Because that’s exactly how they talked.)
Next, note that “Congress shall make no law respecting an establishment of religion“. That means that any law like prayer in schools, hanging of Commandments, or anything else that is an official state recognition of religion is out. This also covers pathetic dodges like attempting to make religious shrines “secular” monuments. By the same token, any attempt to restrict people from “the free exercise thereof” is also banned, so stopping folks from displaying a manger scene on their own property is as unconstitutional as banning a sign that says “God hates fags.” You don’t have to like it or agree with it, but it cuts both ways. That’s the way I read it.
Also, while it’s been said before, I think it’s worth noting and reinforcing that the First Amendment is not there to protect popular speech. That’s easy; if the majority of people like what you have to say or believe, and in particular if the people who trod the halls of power are comfortable with what you are saying and how you say it, then you have nothing to fear in terms of what you say or do being restricted. It is the unpopular speech, the vile speech, the speech we would prefer not to have to endure in our comfortable lives that most needs protection. Whether it is jerks who claim military service they never gave or idiots who deny the Holocaust, we need to protect and allow all speech. Let us not forget that there was a time in our country’s history when speaking out against slavery, or in favor of equal treatment for people of all ethnicities or genders, was equally offensive in polite society and the halls of power.
Finally, and this is the big one, expression is merely the final extension of thought. To give freedom of expression without freedom of thought is like saying “Any customer can have a car painted any color that he wants so long as it is black” (thank you Henry Ford.) Being given the choice between “yes” and “yes, please” is no choice at all. Likewise, hate crime legislation is wrong on two points: first, it presumes we can know the true thoughts and motivations of another person. Honestly, I don’t know why I do the shit I do half the time. I’m supposed to understand why other people do things? And even if I did, the First Amendment gives us the right to believe what we want. You don’t have to like it, and you don’t have to agree with it. If the way someone expresses those beliefs is a crime, then let them be punished in accordance with the crime they committed, but not for the thoughts in their head.
Unless we’re okay with making thoughts a crime.
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My Not So Humble Opinion 