But something that can be endlessly reinterpreted can’t have definite meaning. And something so vague is contrary to what, from my readings, the Founding generation thought a Constitution was.

An illuminating book, The Ideological Origins of the American Revolution by Bernard Bailyn, contains a section called “Constitution and Rights” in which Bailyn presents contemporary writings showcasing the evolution of constitutional thought in America during the mid- to late-18th century. A constitution was conceived of as a fixed and inviolable covenant, between the people and/or with God, above government and permanently constraining it, that would demarcate the frontier of government power and secure the people’s “universal, inherent, indefeasible” rights. Only with the consent of “a clear majority of all the inhabitants” could alterations be made. A constitution was believed only capable of securing rights if its stipulations could not be “altered or changed by ruler or people, but [only] by the whole collective body.” Whereas room was made for judicial review, the purpose was not to “adjust” a constitution but to defend it.

The Federalist Papers are consistent with this view of constitutionalism. In Federalist 78, Alexander Hamilton writes (emphases mine):

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing….

Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.

…

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.

Had the Founding Fathers conceived of the role of the judiciary as not just defending the Constitution, but updating it for “changing conditions,” then how odd for Hamilton to declaim exactly that in Federalist 78, and to dispute the need for a Bill of Rights in Federalist 84. I would think if the Founding Fathers had envisioned anything like a “Living Constitution” whereby the constitution would be periodically adjusted by the judiciary, they wouldn’t have consigned the declaration of essential rights to an afterthought, or left the list as short as they did. And, had the original public understanding of the Constitution included a federal judiciary with the ability to adjust to changing conditions, then given the contemporary revulsion of central power and philosophy of constitutional rule, the states probably wouldn’t have ratified the document.

But they did ratify the Constitution, and it was put into practice, after which the earlier principles of constitutonalism continued to hold sway. In a letter written during his presidency, on March 27, 1801, to Eddy, Russell, Thurber, Wheaton, and Smith, Thomas Jefferson describes what he views as proper constitutional interpretation:

The Constitution on which our union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption,–a meaning to be found in the explanations of those who advocated, not those who opposed it merely lest the constructions should be applied which they denounced as possible. These explanations are preserved in the publications of the time, and are too recent in the memories of most men to admit of question.

Of course, today, the explanations are obscured by the passage of two centuries. But we still have the publications in which those explanations appeared, so due diligence can mitigate against historical amnesia.

Joseph Story, a protegee of Supreme Court Chief Justice John Marshall, an influential Supreme Court justice in his own right, and the author of one of the dominant works on jurisprudence in the 19th century, the 1833 collection Commentaries on the Constitution of the United States, supports the revolutionary era idea of constitutionalism in his chapter “Rules of Interpretation” (emphases mine):

On the other hand, a rule of equal importance is, not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous. If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment. If they do not choose to apply the remedy, it may be fairly presumed, that the mischief is less than what would arise from a further extension of the power; or that it is the least of two evils. Nor should it ever be lost sight of, that the government of the United States is one of limited or enumerated powers; and that a departure from the true import and sense of its powers is, pro tanto, the establishment of a new constitution. It is doing for the people, what they have not chosen to do for themselves. It is usurping the functions of a legislator, and deserting those of an expounder of the law. Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare, ita lex scripta set, to follow, and to obey. Nor, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide and practice, then mere policy and convenience. Men on such subjects complexionally differ from each other. The same men differ from themselves at different times. Temporary delusions, prejudices, excitements, and objects have irresistible influence in mere questions of policy. And the policy of one age may ill suit the wishes, or policy of another. The constitution is not to be subject to such fluctuations. It is to have a fixed, uniform, permanent construction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, today, and for ever.

None of this is to say the principles of the Constitution can’t be logically extended for the modern day. Just because Article I, Section 8, doesn’t mention an air force or a space fleet doesn’t mean Congress can’t establish them; all military branches the Founding generation could have imagined appear, and little reason exists to suppose the constitution was understood to allow some branches but not others. Likewise, just because the First Amendment doesn’t mention the Internet doesn’t mean web users don’t have free speech; had the Internet existed in 1789, it likely would have been included in the First Amendment, and including it now does no violence to the principle at hand.

“Amendment by judiciary,” however—inserting, altering, or removing constitutional principles through new judicial interpretation, or, as Obama put it, “read[ing] in the context of an ever-changing world”—destroys the firm covenant “we the people” made when founding America in favor of the very oligarchical caprice the Founding generation sought to avoid with the Constitution in the first place.

Supplemental reading

Randy E. Barnett, the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, expounds on “The Original Meaning of the Commerce Clause” in an article for the University of Chicago Law Review.

On a “Living Constitution” is a post from Hypersyllogistic - Politics, Culture, Entertainment, Discussions, Blogs, Photos

Prior to attending oral arguments before the D.C. Circuit, I had the impression the Court bore diminutive stature. Intellectually, I had known the D.C. Circuit sat on the judicial pyramid just below the Supreme Court, with only a few other courts in the nation wielding power equal to it. But, since I had anticipated visiting the Supreme Court, my emotional reaction to the D.C. Circuit had been, this is not important. I had expected the D.C. Circuit courthouse to stand in an obscure part of the city. When I walked out of the closest Metro stop to the courthouse, I was pleasantly surprised to see the Capitol Building sprawling to the right. Knowing this locus of power resided near my destination made me feel as if I had judged the D.C. Circuit poorly. Maybe I would observe something exciting and significant after all.

Granting that, however, whatever the D.C. Circuit did would not have the thrilling impact of a Supreme Court decision. Hence, when I arrived at the courthouse, no lines of eager visitors loitered outside. No crowds of tourists clogged the interior halls. (That suited me, for it meant I could come at a reasonable time and still hope to complete my field work!) The strongest impediment to my progress was, I had no clue how to find the courtroom. I asked a security guard where the D.C. Circuit met; he said the fifth floor. After riding the elevator there, I found a sign pointing to the clerk’s office, but nothing indicating the location of the courtroom. So I walked to the clerk’s office, intending to ask where the Court sat. In the office, I overheard someone else asking where the Court was and receiving an answer. That answer led me finally to the courtroom, almost on the opposite side of the building from the clerk’s office.

I found myself in a modern and ornate room. Exquisitely polished wood paneled the walls on the sides and in the back. Gray marble served as the front wall, behind the raised platform on which stood the judges’ desk. Wooden pews, as clean as the walls, lined the area from which the audience could watch the proceedings. The lawyers, appellees, appellants, courtroom staff, and judges would sit on black high–backed office chairs. To facilitate the work of the lawyers, staffers, and judges, gray Dell laptop computers sat on the desks of the proceeding staffers and participants. The sight of the computers surprised me, admittedly because most courtrooms on television and in movies lack such technology. I wish I had brought a wireless network sniffer so I could determine whether a wireless network was operating.

Despite the modern chairs and appliances, the courtroom evoked to my mind the comparison of the American judicial system to a church, though of the law and not the divine. As I said earlier, the audience sat on pews. On both sides of the courtroom, judges in their robed finery looked down at everyone from grave paintings hanging on the walls. Like in church, respectful silence pervaded the room, with no one daring to speak above a whisper without permission. The ostentatiousness yet stateliness of the room reminded me of church. Plus, a heavy atmosphere suffused the courtroom, weighing down the inhabitants until they surrendered their reserve and beheld the place with awe. One calling the courtroom a “cathedral of justice” would not exaggerate.

Immersed in this regal setting, I had thought the first argument—United States v. Navron Ponds—would commence punctually at 9:30 AM. That would keep with the aura of order the courtroom exuded. Instead, the lawyers did not take their seats until a few minutes after 9:30, and the judges not until some minutes after that. As the judges (Judith Rogers, David Tatel, and Janice Brown) filed into the courtroom, the clerk really did say, “Oyez, oyez, oyez,” which I had thought an anachronism with which the court system had dispensed. The clerk demanded everyone rise until the judges sat their desk, which we did. And then, at last, the oral arguments for the first case began.

Each lawyer stood behind a podium in the center of the room to speak. As the attorneys gave their presentations, I observed a digital timer on the podium, counting down from the 10 minutes each side had to make their cases. I figured, since each side had 10 minutes apiece, the oral arguments would conclude within a short 20 minutes. Incorrect my assumption was. As the judges asked, and the lawyers attempted to answer, questions about the merits of each side’s case, the timer for both sides reached “00:00″ and stayed there for 20 to 30 minutes afterward. When the oral arguments concluded, nearly an hour had passed.

Neither the first lawyer, a woman advocating for Ponds, nor her male opponent, an attorney for the United States government, impressed me. The government lawyer acted more confident, but both he and she espoused contradictory lines of thought and did not know the answers to some of the judges’ questions, including queries about the very precedents the lawyers were citing. The judges controlled the arguments, trying to resolve inconsistencies and illuminate legalities in both sides’ cases. (I suppose the best lawyers argue in front of the Supreme Court, not the Circuit.)

Judge Tatel asked the most questions, vigorously poking holes in the arguments of each lawyer. Sitting at the middle of the judges’ desk, laptop in front of her, Judge Rogers spoke less often than Tatel, although she increased her frequency of questioning for the government lawyer. The third judge, Brown, said hardly anything at all. She asked one question of the woman; the rest of the time, she sat and stared at the lawyer behind the podium or glanced occasionally down at papers she had gathered in front of her.

The appellant himself, Navron Ponds, did not attend the proceeding from what I could gather. That disappointed me because I would have liked to picture the man around whom the case revolved. But I guess Ponds’s presence was unnecessary. No one could give testimony, so Ponds would not have had the option of taking the stand in his defense. Also, the judges of the D.C. Circuit would have been less susceptible to a defendant’s positive appearance and demeanor than a jury.

Because I had other classes to attend later in the day I visited the D.C. Circuit, and because the oral arguments can last much longer than their time allotments would indicate, I left after the presentations of the first case. I exited the courthouse feeling satisfied, for the D.C. Circuit had exceeded many of my expectations. It seemed less organized than I thought it would be upon entering the courthouse and courtroom, but that I could predict such stems from the ornate environment and weighty atmosphere I had not believed I would find at the Circuit. Additionally, the issue under consideration was important, at least to this libertarian.

What was this issue?

Navron Ponds, a Washington, D.C., lawyer, did not want to pay his taxes. Therefore, he committed tax evasion, in the process of which he also laundered money. Amongst Ponds’s activities were “transferring the title of his cars, selling a rental property and causing his sister to open an annuity account in her name with the proceeds. Ponds used the funds in that annuity account for his personal use and benefit.”¹ The federal government acquired at least part of its evidence against Ponds through the use of a subpoena demanding categories of documents, following Ponds’s failure to disclose his receipt of a 1991 Mercedes-Benz from a client, Jerome Harris. These six categories were documents relating to:

1. “The use, ownership, possession, custody or control of the 1991 Mercedes-Benz”.
2. “The payment of legal fees by Harris the defendant”.
3. “Any vehicles in Harris’s custody (if the defendant had access to them).
4. “Laura P. Pelzer (defendant’s sister) or the two other individuals who were on the title of the Mercedes”.
5. “Correspondence between defendant and the government in the underlying criminal case concerning Mr. Harris”.
6. “Employees in the defendant’s law office”.²

A federal court convicted Ponds of tax evasion and wire fraud, sentencing him to 20 months in prison and then 3 years of supervised release.³ Ponds appealed, though, on the grounds the evidence the government used against him was tainted. In the oral arguments before the D.C. Circuit, the attorney for Ponds asserted the subpoena the government had served Ponds was unconstitutional as per the precedent of United States v. Hubbell. In Hubbell, the Supreme Court had established the government may not subpoena documents under broad categories. This would violate a citizen’s Fifth Amendment rights because it would require him to incriminate himself through his choice of what documents to produce, as well as by the very act of forcing him to reveal to the government incriminating documents. (I mean specifically reveal, as in bring forth something previously unknown to the other party, and not merely produce.) Only if the government already knows with “reasonable particularity” what documents it is seeking may the government subpoena them. Ponds’s lawyer asserted the government did not know what documents Ponds had, as the generality of the subpoena categories revealed, so the D.C. Circuit should dismiss Ponds’s conviction.

The appellee lawyer argued, at first, the government did not use the subpoenaed documents in its case against Ponds. After Judge Tatel questioned that assertion, saying the government indeed had admitted it had used the documents in its investigation, the attorney eventually maintained the government knew with “reasonable particularity” Ponds had specific sources of information. As the lawyer continued his presentation, Judge Tatel asked him whether, pursuant to the subpoena, Ponds would have needed to produce correspondence with his sister relating to a family reunion. The government lawyer initially said no, because that would not be material to the investigation. Tatel portrayed that as making the person choose to reveal incriminating documents, as those would be the ones relevant to the investigation, thereby violating the Fifth Amendment. Conceding Tatel’s point, after which he changed his answer, saying Ponds would have needed to produce anything relating to his sister, even birthday cards.

While both sides argued their cases, the judges made clear their obligation to obey Supreme Court precedent. Judge Tatel proclaimed, as a lower court, the D.C. Circuit’s task was to follow the precedents of Hubbell and Fisher v. United States, a related case, even if the Circuit did have to figure out what the cases mean and how they mesh. Later, Judge Rogers said she was “trying to understand the concept the Supreme Court wants us to apply.” This all comports with the role of the D.C. Circuit in the federal judicial system. The Supreme Court sits atop the judicial pyramid, and so directs the decision-making of federal courts below it. This means lower court decisions must be consistent with Supreme Court rulings. In the event a lower court flouts Supreme Court precedent, the Supreme Court will likely overturn the decision, anyway. Ergo, the D.C. Circuit would have extreme difficulty charting new legal territory in contradiction of Supreme Court precedent.

That said, the understanding of lower courts refracts Supreme Court precedent in accordance with the mindsets of the deciding judges, so predicting how the D.C. Circuit will decide is not as simple as canvassing previous Supreme Court rulings on the topic. One must consider the models of judicial decision-making as they relate to the Circuit judges who considered this case in order to determine potential outcomes. The primary decision-making models are legal and attitudinal.

The legal model of judicial decision–making represents the ideal of how Americans believe judges should operate. According to this model, judges sublimate their own political and societal preferences to the plain meaning of the law. If a law is not clear, judges will consider the original intent of the law’s writers in rectifying ambiguities. In addition, judges will conform to the principal of stare decisis—”to stand by that which is decided”⁴—whereby they will respect judicial precedent as much as they can to facilitate a stable legal system. Most lawyers and judges give lip service to following the law and to stare decisis,⁵ and as I described earlier, the three D.C. Circuit judges who heard Navron Ponds were not exceptions.

If Tatel, Rogers, and Brown decide as per the tenets of the legal model, they will overturn Ponds’s conviction. The Hubbell case reaffirmed the Supreme Court’s earlier finding in United States v. Doe that the government may not subpoena “broad categories” of documents to fish for incriminating materials.⁶ As previously mentioned, that would violate a citizen’s Fifth Amendment rights. The government may only seek through subpoenas documents of which it knows “either the existence or whereabouts.”⁷ (As Fisher held, compulsion to produce voluntarily–created documents does not itself violate the Fifth Amendment. No government agent forced anyone to create those documents, and the government has every right to obtain documents of which it knows.⁸ What violates the Fifth Amendment is requiring someone to identify incriminating documents for the government, said Hubbell.⁹) Ponds’s lawyer noted if the government had known what it sought, it could have crafted the subpoena more narrowly instead of requesting such large categories of documents as, for instance, those relating to Ponds’s sister. The advocate went on to say the government could have pursued an alternative course that would not have violated Ponds’s rights against self-incrimination: The government could have gotten a search warrant and fetched any incriminating documents itself. That the government did not do so bespeaks either sloppiness or insufficient compelling evidence Ponds had broken the law. Whatever the reason, the government acted inappropriately, judging from what Hubbell maintained. If the D.C. Circuit judges follow Supreme Court precedent, they will toss this conviction the government achieved at least partially through ill–obtained evidence as Hubbell defines it.

Whereas the legal model posits judges slavish in their objectivity, the attitudinal model stipulates judges ruled by their subjectivity. Judges will decide cases to advance their own policy preferences, and they will contort law and precedence as much as necessary to support their agendas. In these circumstances, the ideologies of judges deciding a case, and not prior statutes and decisions, will better help predict the eventual outcome. One should still consider precedent–setting cases, such as Hubbell and Fisher in regards to Navron Ponds, but in the context of how the judges could interpret the cases to match their political goals.¹⁰

If Judges Tatel, Rogers, and Brown act under the dictates of the attitudinal model rather than the legal model, would they decide the case differently from what I outlined above? No. Judges Tatel and Rogers are leftist judges, ´ la Associate Justices Ruth Bader Ginsberg and David Souter, respectively.¹¹ The American left usually supports narrow government authority under the Fifth Amendment. Given that, Tatel and Rogers would not allow the government to require citizens to identify for investigators incriminating evidence.

As for Brown, a conservative similar to Associate Justice Antonin Scalia,¹² she might vote against the government as well, to curtail government aggressiveness, a bane of American conservatives. Scalia himself voted with the majority in Hubbell not to allow subpoenas of broad categories of documents.¹³ Brown’s conservatism, however, might take her in the direction of wanting to be hard on criminals. This could lead her to back the government’s actions. In support, Brown could maintain the subpoena categories are not broad enough for Hubbell to cause problems. And she could accept the government’s claim it knew with reasonable particularity about Ponds’s incriminating documents.

However Brown proceeds, the attitudinal model would still suggest the overturn of Ponds’s conviction because of the voters of Tatel and Rogers. (On a side note, if one assumes the attitudinal model has primacy, then my interpretation of what the legal model demands could be a function of my libertarian ideology. Similarly, perhaps judges, into whom law schools drilled the legal model, intend to apply that model but behave as the attitudinal model would predict, anyway, because their ideologies influence their legal interpretations.)

Another way the media especially likes to predict how judges will rule is evaluating their behavior during oral arguments. Was Judge A mean to Lawyer Z? Then maybe A will vote against Z’s position. Or was Judge E accommodating toward Attorney R? Then perhaps E wants the same results R does.¹⁴ Using this approach, though, is not useful in gauging how the D.C. Circuit might decide Navron Ponds. Judge Tatel grilled both sides. Initially, I believed Tatel reviled the notion of invalidating the subpoena, but then the government lawyer came up, and Tatel ripped him apart, too. I concluded, then, Tatel was playing devil’s advocate for both sides, which was fun to watch but undemonstrative of his true thoughts. Judge Rogers also expressed skepticism of both appellant and appellee. Judge Brown did not talk enough for me to analyze her behavior at all.

¹ Internal Revenue Service, “FY2004 Examples of General Tax Fraud Investigations.” Available http://www.irs.gov/compliance/enforcement/article/0,,id=106792,00.html.

² United States of America v. Navron Ponds. 290 F. Supp. 2d 71; 2003 U.S. Dist. LEXIS 20522; 92 A.F.T.R.2d (RIA) 7047.

³ IRS.

⁴ ‘Lectric Law Library, “Legal Definition of Stare Decisis.” Available http://www.lectlaw.com/def2/s065.htm.

⁵ Dr. Garry Young, lectures at The George Washington University. March 21, 2006.

⁶ FindLaw, United States v. Hubbell. Available http://laws.findlaw.com/us/000/99-166.html.

⁷ Ibid.

⁸ FindLaw, Fisher v. United States. Available http://laws.findlaw.com/us/425/391.html.

⁹ FindLaw, Hubbell.

¹⁰ Dr. Garry Young, lectures at The George Washington University. March 23, 2006.

¹¹ Dr. Garry Young, e-mails to Jason Vines. April 10, 2006, and April 11, 2006.

¹² Dr. Garry Young, e-mail to Jason Vines. April 10, 2006.

¹³ FindLaw, Hubbell.

¹⁴ Dr. Garry Young, lectures at The George Washington University.

A Paper on Oral Arguments for United States v. Navron Ponds before D.C. Circuit Court of Appeals is a post from Hypersyllogistic - Politics, Culture, Entertainment, Discussions, Blogs, Photos

Bush and Miers

After nominating John Roberts, an intelligent Harvard Law School graduate who even the Democrats had to admit was well-qualified, to whom does President George W. Bush turn for his next Supreme Court nomination? His present White House counsel and former personal lawyer Harriet E. Miers. And what is her philosophy as a judge? She doesn’t have one, because she’s never been a judge before.

This nomination defies logic. Shouldn’t a woman who sits on the highest court of the land, and who helps direct lower courts, know what being a judge is like? As a lawyer, she might have argued before judges many times, thereby gaining some understanding of their job. But observing someone doing a job provides only incomplete knowledge of what working in that job entails. For example, one can’t know what a police officer’s job truly encompasses until one has felt the anxiety of walking a beat or arresting a dangerous criminal. Judgeships are the same way; until one has presided over a courtroom, managed lengthy dockets, and struggled to keep opinions out of decisions, one can’t comprehend a judge’s duties.

How does Miers even know she’d enjoy sitting on the bench? As a lawyer, she presented subjective viewpoints all the time. Would she like factoring them out of her decisions now? More importantly for the country, would she be able to do so? No one knows!

When people said Bush’s next Supreme Court nominee didn’t have to be a John Roberts… they didn’t mean she didn’t have to be qualified for the position.

In drafting the “advice and consent” clause of the Constitution, the Founding Fathers did not intend for the Senate to force the president to nominate whomever they thought best, as Alexander Hamilton says in Federalist 66 and 76. The purpose wasn’t to allow the Senate to screen nominees ideologically. Instead, the objective was to ensure the president nominated people of merit. As Hamilton writes in Federalist 76:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

Miers, a woman who has personal ties to the president but no actual merit, is the kind of nominee whom the Founding Fathers wanted the Senate to prevent from taking office. Democrats who’ve been waiting for a chance to rip apart one of Bush’s Supreme Court nominees now have the Founders’ blessing to do so. (Get to it, ladies and gentlemen!) And senatorial Republicans will hopefully cast aside partisanship and join with the Democrats to stymie President Bush’s nomination as well.

Bush scrapes bottom of nepotistic barrel for latest SC nomination is a post from Hypersyllogistic - Politics, Culture, Entertainment, Discussions, Blogs, Photos

The last time the American court system grappled with “under God” in the Pledge, Michael Newdow represented himself, and he sued on behalf of his daughter against the Pledge in public schools, on the grounds it contained “under God.” Newdow argued that constituted government endorsement of religion. The Ninth Circuit agreed, ruling the 1954 law that introduced “under God” into the Pledge unconstitutional. The Supreme Court overturned the Ninth Circuit’s ruling, though without resolving the underlying constitutional question. They chickened out of that by saying Newdow didn’t have standing to file a lawsuit on behalf of his daughter, of whom he didn’t have custody.

Now, though, Newdow has sued against “under God” again, this time as a lawyer representing three parents who do have custody of their children. With the standing of the plaintiffs in this case unquestionable, the Supreme Court won’t be able cowardly to dodge the constitutional issue. They’ll have to resolve the matter one way or another.

(Read from the Washington Post: School Pledge is Unconstitutional.)

I champion the separation of church and state. As per the First Amendment of the Constitution, the government has no business endorsing religion. Forcing children in public schools to acknowledge the United States as “one nation under God” in the Pledge of Allegiance constitutes government support for monotheistic religion. If you don’t believe me, believe the man who signed the 1954 bill adding “under God” to the Pledge, President Dwight D. Eisenhower:

From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our nation and our people to the Almighty.

Eisenhower admits the intent of the bill was to impress upon schoolchildren belief in Christianity! For the American government to do this flouts our Constitution.

So I applaud today’s ruling against compelling kids to recite the Pledge of Allegiance in public schools. Still, I have quibbles with it. Judge Karlton maintains the 1954 “under God” law isn’t unconstitutional in and of itself; only forcing students in class to proclaim they’re “under God” defies the Constitution. I disagree. The Pledge of Allegiance receives the sponsorship of the United States government. With “under God” in the Pledge, the government is thereby acting unconstitutionally.

Also, concentrating on “under God” instead of the whole Pledge of Allegiance would make the findings of the decision more palatable to the citizenry. It wouldn’t be such a radical change from what they experienced in school, so it wouldn’t scare them as much. Children would still recite the Pledge every morning, just without proclaiming subservience to God. (I actually think compulsory recitation of any version of the Pledge evokes Fascism, but that’s another argument for another screed. )

I hope the Ninth Circuit tweaks the findings more sensibly, to reflect the Constitution more accurately and to increase the acceptability of a decision in favor of Newdow.

School pledge ruled unconstitutional is a post from Hypersyllogistic - Politics, Culture, Entertainment, Discussions, Blogs, Photos

This is one of the most nonsensical, dangerous things I’ve heard in a long time. During this era of nonsense and danger, that’s saying something.

According to the left-most justices of our “illustrious” Supreme Court, local governments can use the police power of government to expel citizens from their homes to make room for new Wal-Marts and mini-malls. With this decision, the Supreme Court has given the finger to the Fifth Amendment of our Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

“Due process of law” and important “public use” are no longer requirements to take away one’s property. Now, all that’s necessary is a greedy city council and a wealthy entrepreneur who wants to make a bit more money. This is exactly the kind of action, taken by a strong and intrusive government, that would make the teeth of Thomas Jefferson gnash in agitation. (I refer readers here and here, for starters.)

Americans who cherish their freedom must act against this scourge. Go to the web sites of the House of Representatives and the Senate, find the contact pages of your representatives and senators, and tell them to do all they can to oppose eminent domain for the spurious benefit of private businesses. Write Letters to the Editor of your local newspapers and post to Internet message boards as well. Do not vote for any politician who speaks in favor of eminent domain abuse.

Ladies and gentlemen, we can take back our country. Let’s get to it.

Addendum: Castle Coalition, a group fighting eminent domain abuse, is worth visiting.

Eminent domain helps Americans pick up where Soviets left off is a post from Hypersyllogistic - Politics, Culture, Entertainment, Discussions, Blogs, Photos

Michael Jackson stands trial on trumped up charges of child molestation.

Before the trial against Michael Jackson started, his prosecutors, with the aid of an eager media, promised the world damning evidence against the superstar. Finally, we were led to believe, the allegations that “Wacko Jacko” shopped for partners in the junior section would morph into facts. After the prosecution was done with him, the whole world would see him for the child molester he supposedly was, and he’d be going to jail for a very long time.

Reality has developed differently.

After a trial that has lasted a few months and elicited the testimony of hundreds of witnesses, all Jackson opponents have to go on is still a pack of vague allegations. They have wild and inconsistent rambling from the accuser’s mom, who has tried to bilk celebrities and institutions from their money before. They have contradictory stories from the accuser’s siblings and the accuser himself. They have unsubstantiated claims and hearsay from former Jackson employees resentful of their old boss. What they don’t have is any physical evidence that Jackson abused anyone. They don’t have the trustworthy word of any reliable witness. In essence, the prosecutors and their allies would have people believe Jackson is a molester simply because they say so. Never mind that we have no reason to believe them.

After the prosecution’s shoddy presentation of their case against Jackson, the defense’s effort was just a formality. The prosecutors hadn’t remotely proven guilt beyond a reasonable doubt. Still, Jackson’s defenders put in more than a perfunctory effort as they presented witnesses who opposed everything the accusers had said. Certainly, the defense witnesses didn’t offer much proof of their contentions, either. But the burden of proving that something sinister happened at Neverland, thereby discrediting the witnesses’ claims, was on the prosecution. And the prosecution didn’t meet that burden. Also, the testimony of the defense witnesses had the benefit of being more plausible.

Consider this: Over the course of his adult career, from the early 1980′s to the present, Michael Jackson has had access to thousands of children. Many of these kids were guests at his Neverland ranch; he could’ve had them to himself and did whatever dastardly things he wanted to them, if he were so inclined. Despite that, however, only a few dubious allegations of wrongdoing have arisen. This tells us straightaway that Jackson is probably not a pedophile. If he actually did molest children, a lot more victims and families would be accusing him of evil acts. His wealth wouldn’t awe into silence many parents whose children had really faced molestation. (Parents who are reading this, think about what you’d do if your own kids faced abuse. I’d bet no amount of money could stem your fury.)

I hope the jury deliberating in California now reaches an honorable verdict of, “Not guilty.” That could be the only just conclusion to this kangaroo trial.

The case against Michael Jackson is flimsier than a roof of straw is a post from Hypersyllogistic - Politics, Culture, Entertainment, Discussions, Blogs, Photos

Conversely, when 15 students died from gunshot wounds during the 1998–1999 school year, as the Centers for Disease Control and Prevention indicate, the national media evangelized endlessly about the evils of guns. Apparently forgetting that many of the kid killers, such as Eric Harris and Dylan Klebold, had obtained their weapons illegally, hordes of crusaders seethed that if guns weren’t legal and available, the school murders wouldn’t have happened. A few local governments, hoping to score political points, filed lawsuits against gun manufacturers, blaming them for the orgy of death and violence that seemed to have consumed America’s school system.

Why did 15 deaths related to high school football inspire scant attention, while 15 deaths resulting from gun violence kindled nationwide apoplexy?

Many right–wingers would simply answer, “Because the gun grabbers want to seize our weapons, they will ignore any fact that stands in their way!” These conservatives believe leftists across America want to confiscate firearms for the sole purpose of extending government control over the citizenry. But really, the notion that an enormous conspiracy, in which common liberals from all regions of the country participate, exists to subjugate the American people, is patently absurd. Most Americans care too little about politics and government to sustain such a far–reaching plot. Instead, the average gun control advocate honestly does believe that laws tightly regulating firearms, if not outright banning them, would reduce the number of Americans who die as a consequence of criminal attacks.

Gun control advocates amongst the populace acquire their ideas about firearms from news personalities and government officials who use guns as convenient scapegoats for this country’s high crime rate in order to avoid having to search for genuine causes and solutions. Whenever an event such as a school shooting occurs, the personalities and officials shamelessly exploit the opportunity to vilify guns and the individuals who own them. The real interest here is not to save lives, but to exacerbate public opinion against guns. That is why the whole world mourned the tragic deaths of 15 students from gunshot wounds during the 1998–1999 school year, but few people, if anyone, seemed to care that 15 high school football players died in 1999.

The truth about guns is that they save far more lives than they take. According to the Fall 1995 issue of The Journal of Criminal Law and Criminology, law–abiding citizens use guns to defend themselves an average of 2.5 million times per year, and only in less than 8 percent of these occurrences will citizens actually need to fire their guns, because most criminals will flee at the sight of a firearm. Of the 2.5 million annual instances of self–defense, 200,000 are cases of women defending themselves from sexual abuse. In contrast, accidental deaths, suicides, and homicides involving guns number, on average, less than 40,000 every year. This means that American citizens usually employ guns to defend themselves over 60 percent more times yearly than they do to kill, intentionally or otherwise.

According to the August 28, 1996, issue of The Wall Street Journal, states with looser gun control laws experience less crime than states with tougher laws. For example, in states that had begun to permit concealed weapons in the early 90′s, the murder rates fell by an average of 8.5 percent, the rape rates by 5 percent, the aggravated assault rates by 7 percent, and the robbery rates by 3 percent. Extrapolating from these data, if states that forbade concealed weapons instead allowed them, 1,570 murders, 4,177 rapes, 60,000 aggravated assaults, and 11,000 robberies annually would not have taken place.

The story of Australia demonstrates what could happen in the United States if the American government were to ban guns. After a nut conducted a particularly brutal massacre in the mid–90′s, Australia enacted laws disallowing personal firearms. By the end of 1997, according to the Australian Bureau of Statistics, crime had increased. The homicide rate rose by 3.2 percent, the assault rate by 8.6 percent, the armed robbery rate by 44 percent, the unarmed robbery rate by 21 percent, the unlawful entry rate by 3.9 percent, and the car theft rate by 6.1 percent. Even supposing that Australia’s new gun laws did not directly cause the increase in crime, the laws certainly did nothing to help matters.

Because guns are not the forces for evil the media and the government claim they are, no reason exists to forbid or to constrict the right to bear arms for law–abiding American citizens. Restrictions of freedom are only necessary and proper when their design is to prevent individuals from harming other people, which outlawing guns would not accomplish. Indeed, all the criminalization of guns would do is leave the average American defenseless against murderers and thieves who would retain their own guns, in natural contrivance of the law.

Rather than inhibiting freedom, the United States should err on the side of liberty, as per the Constitution, and allow its citizens to exercise their Second Amendment rights as they have over the first 200 years of American history. (Contrary to the notion that the Second Amendment does not grant individuals the right to bear arms, the Supreme Court ruled in its 1990 decision U.S. v. Verdugo-Urquidez that the Second Amendment applies to “persons who are a part of a national community.”) As Thomas Jefferson, one of the most intelligent Founding Fathers, said, “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.”

Gun Control Will Solve Nothing is a post from Hypersyllogistic - Politics, Culture, Entertainment, Discussions, Blogs, Photos

Jackson's "Beat It" helped eradicate MTV's reluctance to air videos from black artists.

Michael Jackson has established himself as one of the most successful musical artists in history. His album Thriller—which won a record eight Grammies—remains the bestselling album of all–time, having sold over 51 million copies worldwide. Jackson’s enormously popular videos for “Billie Jean,” “Beat It,” and “Thriller” eliminated MTV’s reluctance to broadcast videos from black artists. Also, TV Guide, BET, and MTV determined “Thriller” to be the best music video ever made.

Jackson’s later albums also experienced phenomenal success. Bad, from 1987, was the second bestselling album of the 1980′s, and it was the first album to have six number one singles. In addition, Jackson’s Bad concert tour was the most successful tour ever. A few years later, Michael Jackson’s Dangerous became the bestselling album of 1992, and Jackson’s 1993 half–time performance at Super Bowl XXVII was at the time the highest rated show in television history.

That year of 1993 was when the media’s dogs pounced on Michael Jackson and tore his reputation to pieces.

Almost everyone alive at the time would remember what happened. A young boy named Jordy Chandler accused Michael Jackson of molesting him, and not even 24 hours after the media discovered this, they had spread the allegation all across the globe. Tabloid writers and legitimate journalists alike competed fiercely amongst themselves to write or to air the most sensational stories about Jackson. Before long, the media had pronounced Jackson guilty of child molestation and had branded him a pedophile and a pervert.

At first glance, the media’s case against Michael Jackson appears strong. Jordy Chandler had provided to police descriptions both of Jackson’s body parts and of the acts he said Jackson had performed upon him. Also, former housekeepers and security guards who had worked at Jackson’s home, Neverland Ranch, asserted that they had witnessed Michael Jackson performing illicit acts with many young children. Finally, Jackson settled with the Chandler family out of court, an act many people interpreted as an attempt by Jackson to bribe the Chandlers to silence themselves about the molestation.

Upon close scrutiny, though, the case against Michael Jackson collapses faster than a $10 tent hit by a $2 million missile. Jordy Chandler’s famous descriptions of Jackson’s body turned out to be incorrect. A dispatch from Reuters news service on January 27, 1994, revealed that when the police examined and photographed every micrometer of Jackson’s body in an attempt to corroborate what Jordy had said, the police found that none of Jackson’s features matched Jordy’s descriptions.

In 1993, Michael Jackson vehemently denied allegations he'd molestated children.

As for the boy’s stories about his risqué encounters with Jackson, the circumstances under which those stories arose rob them of all credibility. Before Jordy Chandler said anything about molestation, the boy’s father, Evan Chandler, an aspiring screenwriter, became angry at Michael Jackson for not helping him with his career in Hollywood. Therefore, as he revealed in a secretly recorded telephone conversation, Chandler launched a plan to destroy Michael Jackson, as he revealed in a secretly recorded telephone conversation exposed by GQ magazine in October 1994.

According to Chandler in this conversation, “This guy [his attorney, Barry Rothman] is going to destroy everybody in sight in any devious, nasty, cruel way that he can do it. And I’ve given him full authority to do that.” Later in the conversation, Chandler added, “If I go through with this, I win big–time. There’s no way I lose. I’ve checked that inside out. I will get everything I want, and they will be destroyed forever… Michael’s career will be over… It will be a massacre if I don’t get what I want.”

Chandler’s plan was to accuse Michael Jackson of child molestation, but unfortunately for Chandler, Jordy refused to implicate Jackson in any way whatsoever. To solve that problem, Chandler took his son to dental anesthesiologist Mark Tobiner. Tobiner injected into Jordy the barbiturate sodium Amytal, under the influence of which a person is highly impressionable; the effect is similar to hypnosis. With sodium Amytal swimming through his system, Jordy said for the first time that Jackson had molested him.

Finally armed with this crucial tidbit, Chandler brought Jordy to psychiatrist Mathis Abrams, to whom Jordy repeated his allegations of Jackson’s misconduct. Abrams contacted the Department of Children’s Services, which in turn called the police. Five days after the police began to investigate Jordy’s claims, the media discovered the allegations against Jackson.

A short time later, former Jackson employees emerged into the spotlight, saying they had seen Michael Jackson molesting children other than Jordy. Something worth noting is that all of these employees had been fired, so they had reason not to like Michael Jackson. Also, these employees received money for their stories from tabloids such as The Globe and Hard Copy. When these people were in a courtroom, however, where they had to tell the truth on pain of imprisonment, none of them could say they had seen Jackson perform any untoward acts on even a single young boy.

Of course, if the case against Michael Jackson was full of holes, then that begs the question of why Jackson settled with the Chandler family rather than fight against the allegations in court. The reason is, said Jackson lawyer John Branca, “He just wanted the whole thing to go away.” Jackson naívely believed that if he paid the Chandlers to stop pursuing him, then he could get on with his life. He thought the public would support him instead of a father who would accept money in lieu of justice.

Almost a decade after the molestation saga, life for Jackson hasn’t transpired in the way he had hoped it would. Many people throughout the world still believe Michael Jackson is a freak who abuses children. As Jackson prepares to launch his campaign in support of his new album, Invincible, he must accept that reality and work to change it. Only then could Jackson hope to reestablish the pristine reputation the media took from him in 1993. And only then could Jackson hope for his career to ascend once again to the dizzying heights from which he saw his past albums break all records possible.

Is Michael Jackson Guilty? is a post from Hypersyllogistic - Politics, Culture, Entertainment, Discussions, Blogs, Photos