Good Riddance, Justice Antonin Scalia

Justice Scalia was a neo-fascist who tried to destroy America

Antonin Scalia (1936-2016) died yesterday, and good riddance. Our nation would have been better off if he had never been appointed to the Supreme Court. Scalia did his best to insert fascist ideology into the American legal system and Constitution. He was dishonest, manipulative, and unpatriotic. I only wish he had died sooner, preferably hanged like the Nuremberg criminals whose ideas he promoted.

Scalia was of Italian descent, and was the first-Italian American on the Supreme Court. Too bad, because there were many Italian-Americans with American values who would have made better Supreme Court judges. [disclaimer: I am of one-fourth Italian descent]

I do think being raised a Roman Catholic had a lot to do with his moral degeneracy. Roman Catholicism is at the root of fascism and other authoritarian political trends. But I should point out that many American Roman Catholics traded in their Dark Ages values for American rationalism during the very era that Scalia slimed his way through. [disclaimer: I was raised Roman Catholic and attended Catholic schools through the eighth grade. I have long been a atheist with a positive, nature-centric philosophy.]

Scalia became a committed ultra-conservative Catholic while attending a Jesuit-run school in New York City as a teenager. Depending on how you look at it, he either was smart or just spent a lot of time memorizing Jesuit nonsense. He then attended a Roman Catholic college, Georgetown University. By the time he reached Harvard Law School he was so deeply entrenched in lies and casuistry that he never emerged from the black pit. Instead, he worked hard all his life to suck American down into that pit.

I will leave it to others to try to analyze what was in Antonin's genes or childhood experiences that turned him to the dark side. Nor can I take on his opinions in thousands of Supreme Court cases in a short essay. What I want to convey to readers is his general method of attempting to destroy the Constitution. Contrary to his many eulogizers today, he did not invent these methods. They were conveyed to him. He simply reinvigorated them.

Suppose someone said to you: the right to bear arms, when the Second Amendment was added to the Constitution, meant only the right to own muzzle-loading weapons requiring those who wish to fire them to dump some gunpowder and a bullet into the barrel each time.

Scalia, when it was convenient, promoted "originalism" and "textualism" for interpreting the Constitution. In this theory the words of the Constitution mean exactly what they say and cannot be interpreted in modern terms. They have to be interpreted the way George Washington and crew interpreted them.

Except when originalism and textualism where inconvenient to right-wing agendas, as with gun control laws, which he consistently ruled against.

This enabled Scalia to deny that women have rights other than the right to vote. He denied that Congress could create good laws and programs, unless they were specifically listed by in the Constitution. He even ruled that Congress cannot regulate campaign donations as part of its duty to regulate elections, because that is trumped by the right of wealth individuals, corporations, and labor unions to spend all they want on an election.

But originalism and textualism were a phony agenda, a means to an end. Scalia did not rule that guns using technology more modern than that of 1780 could be used only the the U.S. military and police forces. No, he even voted to overturn parts of the Brady Bill.

Scalia's real agenda was to push the nation towards an authoritarian, right wing, Christian (and evenually Roman Catholic) government. Perhaps with slight variations from the Pope Pius, Mussolini, Hitler, General Franco model. But certainly in the direction of the fascist model.

Some people say Scalia could be charming in person. People said the same thing about Mussolini and Hitler.

Scalia denied the reality of the Evolution of Species. He tried to force religious theology to be taught in public schools.

Scalia denied the rights of people to affirmative action. Affirmative Action is Justice, because it makes up for past injustice. But Scalia wanted to steer the nation towards ever increasing injustice.

Scalia was un-american. He was against democracy and human rights, including the right to the pursuit of happiness, instead of misery under a Pope. He wanted to push America into a purposefully ignorant society of obedient religious nutters.

Scalia was a liar and a scumbag in a black robe, which is pretty much what his Jesuit teachers were aiming for.

Within the Catholic Church Scalia refused to accept the move away from fascism known as Vatican II. While we may be unfortunate that he was ever appointed to the Supreme Court, and to some point he did manage to persuade people to find ways to interpret our Constitution in a fascist manner, we are lucky he was just one of nine.

More on Antonin Scalia by William P. Meyers: Impeach Antonin Scalia [June 28, 2012]

McCutcheon vs. Democracy, or Free Speech Gone Wild

According to the Supreme Court of the United States, Congress can't pass a law that sets overall limits on an individual's contributions to all federal candidates for office. The Supreme Court says that is unconstitutional because it violates your free speech rights, if you have over $48,600 to spend on free speech in a given election cycle. Leftists will say that this favors billionaires, but I can see millionaires being hit by the cap as well. They also struck down the limits on contributions to political party committees, which was $74,600.

The case is McCutcheon v. Federal Election Commission, No. 12-536.

Next up, is giving a Supreme Court judge a large gift of cash, as long as it is accompanied by free speech and not a tit-for-tat for a particular ruling, legal?

It is going to be hard for ordinary millionaires who don't follow legal disputes closely to get their heads around the new rules. Used to be, when some whiney politician held his hand out at a chicken dinner, you could say "Sorry boss, I'd like to help more but I already hit the $48,600 limit. Perhaps you'd like to accompany me on a trip to the whore houses, I mean ski slopes, of Switzerland?"

$48,600 to a billionaire, or even a $100 millionaire, is like pocket change to us. It isn't even pocket change, it is like fluff, it just accumulates in their pockets, they don't even know exactly how. Five minutes of interest, or the wife missing her spa appointment, or returning some designer boots and handbags, and there it is, the former 2-year cycle federal campaign contribution limit.

Me, I like free speech. Just as I can have a meal that is tasty and will keep me healthy for 1/10,000 of what the same would cost for a billionaire, I have some ideas about influencing politics with my $5 and $10 bills, and I'm sure the new, improved Supreme Court will rule in my favor, even if speechifying this way happens to be temporarily illegal under the unconstitutional laws written by Congress and those pesky State Legislatures.

First, let's review the two key passages from the Constitution.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations. [Article I, Section 4]

That seems pretty clear. "Manner" seems to cover a lot of ground, including prohibiting horse whipping candidates you don't like, buying votes, requiring Jewish candidates to wear yellow stars. Until yesterday "Manner" included regulating the amount of legal tender non-candidates can donate to the campaigns of candidates.

Opposed to that we have:

Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble. [Amendment I]

Free speech is important, but is a law regulating election contributions an infringement of free speech?

If it is, then I think a lot of other laws are infringing free speech. For instance, punching someone in the nose could be free speech, if your fist is acting as an extension of your mouth or pen, as opposed to merely assaulting someone for ordinary aggressive or criminal reasons. Maybe this would only be true if the punched person holds office, or is running for office, or going door to door soliciting votes for someone who is running for office.

Courts have consistently ruled that workers forming a picket line that interferes with commerce (that is, the business they are working for) is not a form of free speech. Maybe that is what we are not getting about Chief Justice Roberts and crew: the campaign limits interfere with commerce. What about a picket line than prevents a candidate from reaching a debate? What about two powerful political parties that exclude third party candidates from debates?

What about blowing Robert's head off with a shotgun? That is probably going too far. What about advocating that someone should blow Robert's head off with a shotgun? As Robert's said, that sounds "repugnant," and neither Gandhi nor your average citizen who thinks we should all obey all of the laws no matter how stupid they are unless they are personally inconvenient would want to split that hair too finely. What about a billionaire paying an assassin more than $48,600 to blow off Robert's head? Well, as best I can tell from Robert's reasoning in McCutcheon, that would be just fine, now. That is just free speech. Of course, billionaires are selective in whom they send their free speech implementers after.

I'm not sure why smoking marijuana is not free speech. Perhaps because not even a billionaire can smoke up over $48,600 in two years, not without help from the wife and kids?

Why isn't stealing from campaign funds (including candidate's using campaign funds for non-political purposes) not free speech? Isn't speaking negatively about something okay? If not, why can campaigns run attack ads?

Why not just abolish the charade of Congress and let the Supreme Court decide everything?

Let's just hope that one or more of the five rich people's whores on the court dies soon, no matter which way. As much as I don't trust President Obama's judgment, I would expect him to appoint at least slightly better replacements.

What can a true patriot do in this situation to prevent the Rule of Money? I would say there are a number of options, but the Homeland Security Apparatus and the current Supreme Court might consider it conspiracy, not protected speech, if I were to mention certain of them.

Impeach Antonin Scalia

Antonin Scalia's partly concurring and partly dissenting opinion in Arizona v. United States is not a simple prejudiced, racist misreading of the laws of the United States. It is as close to treason as one can get in the United States of America without actually, as the Constitution defines treason, "levying war against them, or in adhering to their enemies."

Justice Scalia begins his argument by asserting "The United States is an indivisible 'Union of sovereign States.' Highlander v. La Plata River & Cherry Creek Ditch Co. 305 U.S. 92, 104 (1938)." That individual States are not sovereign is obvious from hundreds of Supreme Court Decisions, even infamous ones like Dred Scott. Scalia's argument is totally dependent on presenting careful selections from U.S. history as if they were strong precedents.

In fact the cases and historic examples he uses have been discredited, or have only minor significance. Given his attitude, it is surprising that Scalia did not cite the declarations of independence of the States that joined the Confederacy, and then forget to remind us that the Confederate States lost the Civil War and had no Supreme Court ever ruled that they had a right to declare independence.

Scalia even cites the (pre-Constitution) Articles of Confederation, neglecting that they were superceded by our Constitution, which created a nation with a federal system in which the national government, including its Supreme Court, are the supreme law of the land.

My opposition to Scalia's opinion is not meant to detract from the rights of States, and of the People, and of the limitations of the power of the central government outlined in the Constitution. It is not a problem for me when Scalia or any American argues for states rights when they actually exist. Scalia goes much further: he joins the rebels of the Confederacy, using their very arguments, and asserting boldly each individual State is sovereign.

Justice Scalia cites the Kentucky and Virginia Resolutions to support his views, as did the rebels of the Confederacy. These Resolutions are part of our history, but they amount to an opinion that was not ultimately supported by our people or government. Not by most individual states most of the time, not by any Congress, never by a President (not even by their authors, Jefferson and Madison, once they became Presidents), and not by any Supreme Court justice except the rebel Scalia. States cannot judge laws passed by Congress (and signed by a President) to be unconstitutional. That judgment is a duty of the Supreme Court.

A Supreme Court judge is not supposed to cite the losing sides of arguments as precedents. True, the Supreme Court occasionally overrules precedent, as when Brown v. Board of Education began correcting prior decisions that had limited the human rights of non-white citizens. Scalia, in Arizona v. United States, is not simply re-interpreting the Constitution, straightening out some flaw in its prior application. He is attempting to re-write history, law, and the Constitution, and to break up the United States into 50 separate nations.

At the beginning of Section II Scalia writes "One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so." But one's conclusion would be based on Scalia's editing of history to distort the whole cloth of law.

Scalia only reluctantly accepts that the federal government can control immigration "not because of the Naturalization Clause but because it is an inherent attribute of sovereignty no less for the United States than for the States."

So we see the rebel's reasoning clearly: Sovereignty is Supreme, and Scalia and his gang of right-wind legal thugs are to be the interpreters of the meaning of Sovereignty. Does Sovereignty mean trampling on human rights? To Scalia it does. Does it mean trampling on the U.S. Constitution? That is apparent from Scalia's opinion.

After falsely declaring each individual state to be Sovereign (in which case there is no real need for a United States) Scalia claims the case was "about a federal law going to the core of state sovereignty: the power to exclude."

Scalia would exclude illegal immigrants from Arizona. That is not a radical opinion. The problem is the basis of his opinion. Scalia earlier stated who can be removed by a sovereign State: "certain persons, or for certain particular purposes, according as he may think it to the advantage of the state," "obnoxious aliens" (even perhaps bearing Green Cards), "paupers, vagabonds," "persons with contagious diseases," and "freed blacks."

In other words, Scalia would exile anyone Scalia did not like. And a State could exile anyone it did not like. Perhaps Jews, Arabs, Blacks, Hispanics, homosexuals, atheists and agnostics, or the unemployed. Perhaps a state ruled by the Republican Party would exile Democratic Party members. The sick and disabled might be cast out. It all depends on who controls a State.

This is madness. Preaching this poison, which is done all too much within the United States of America, is protected by our rights to freedom of speech and freedom of the press. Sitting on the Supreme Court trying to rule based on this poison is not protected.

Antonin Scalia has exceeded the bounds of his appointment. He should resign. If he does not resign, he should be impeached. If Congress fails to impeach him, human rights in this nation will be gravely in danger of disappearing.

Supreme Court on Healthcare Mandate: What Else Would Go Down?

The conservative judges on the United States Supreme Court would very much like to find that requiring Americans to buy health insurance is unconstitutional. Their problem, if they rule that way, is that it could endanger the legal basis of much of the corporate security state and its control over the economy.

In Department of Health and Human Services v. Florida (No. 11-398), it is being argued by the State of Florida and opponents of the Patient Protection and Affordable Care Act that the federal government, in this Act of Congress, exceeded the powers granted to it by the Constitution. Supporters of the Act will want to rule that it is constitutional, in line with many prior findings, over the course of two centuries, that the Commerce Clause effectively allows for national laws telling citizens what to do or not do about all manner of things.

At the mass media story line level, this case is about whether the federal government can tell a citizen to buy medical insurance, and fine any citizen who does not do so (just $95 per year in 2014, but rising to $695 per year by 2016). Or, and this is important, to put it in the negative: citizens may not walk around without having some sort of medical insurance.

If you think about it for a moment, the federal government tells us we cannot do many things, even if we don't need to cross state lines to do them. We cannot grow, harvest, consume or smoke marijuana, for instance. We may not own heavy armaments. We can't manufacture a fleet of cars that only gets an average of 12 miles to the gallon, nor can we use American Eagles for target practice.

If the Supreme Court says that we cannot be required to buy health insurance, the entire house of cards may collapse. There are a lot of cards that conservatives like, and a lot of cards that liberals like, and probably some cards that both teams like.

The liberal position has consistently been that the federal government has all the power it wants as long as it does not violate certain key sections of the Constitution. The building of this position began in Gibbons v. Ogden, [22 U.S. 1 (1824)], where the Supreme Court decided that individual states could not grant monopolies to steamboat lines that prevented competing companies from offering interstate service. It made a big leap forward when railroads and other trans-state corporations began to be regulated in the late 1800's.

During the New Deal, in the 1930's, the Supreme Court at first resisted, and then admitted (after some changes of personnel), that the power of the federal government to regulate commerce, and anything related to commerce, was virtually unlimited. Famously, in Farmer Filburn (Wickard v. Filburn, 317 U.S. 111 (1942)), the Court ruled that the Department of Agriculture could tell Roscoe Filburn how much wheat he could grow on his private property, even if the wheat itself was not sold, but was used to raise chickens.

The current case is not about States Rights, but has a similar feel to it. Conservatives want federal laws when that helps them get their way, with states rights allowed to stop federal laws they don't like. For once Liberals are completely in agreement: they want federal laws when that helps them get their way, with states rights allowed to stop federal laws they don't like. For instance, when slavery was federal law, liberals wanted states rights to apply so that they could have slavery-free states. Later, when trying to enforce civil rights legislation in the 1960's, liberals were against those very same ideas of states rights, proposed by Democratic Party leaders in the South as a means of preventing segregation.

What we are likely to see is the conservative members of the Court trying to distinguish the Affordable Care Act from other laws that they wish to keep in place, like the marijuana laws and the laws against various tactics that unions would like to use.

We might, in fact, be about to see the Gruel of Law cooked up before our eyes. We may see the pure power of having 5 like-thinking judges on a Supreme Court. They are likely to try to find a way to disembowel the Affordable Care Act while protecting their favorite federal no-nos, like the war on recreational drugs.

I particularly hope that Justice Clarence Thomas writes an opinion. In the liberal-to-left spectrum Thomas is often derided as not just plain wrong, but as beneath the intellectual level as other members of the court. I tend to disagree with Judge Thomas on issues, but I have read a number of his opinions, and found they were well-argued, and illustrate lively intelligence. Thomas dissented in Gonzales v. Raich, in which the majority ruled that the Commerce Clause gives the feds the power to criminalize patients who grow their own medical marijuana. So if he votes against the mandate in the current case, at least he could claim consistency. Ginsburg, Stevens, Kennedy, Souter and Breyer all voted to persecute sick people who use the herb. If any of them (of those still on the court) vote against the Affordable Care Act, they have a lot of explaining to do.

Legal Basis for the Separation of States

Suppose the citizens of one of the states constituting the United States, for whatever reason, wanted to separate from the United States. How could they do that?

So far in U.S. history there is only one precedent. The states of South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, Tennessee and North Carolina, by the end of 1861, withdrew from the United States of America by votes within their states. President Abraham Lincoln, supported by a Republican Party-controlled Congress, simply made war (the Civil War) on the untied states, and the federal government won that war.

Since then the predominant thinking in the re-United States has been that a state cannot separate from the Union because military force will be used by the federal government to overcome any such manifestation of local democracy. Kind of like when Czechoslovakia tried to opt out of the Soviet Block. Because the issue of slavery was entangled with the issue of separation of states during the Civil War, it is still hard to have a rational discussion of the topic.

Clearly the U.S. Constitution allows for an amendment that would either allow a particular set of states to separate, or would set rules for separation in general. In fact, one could dissolve the entire Union with a Constitutional amendment. However, before writing such an amendment, we should look at the Constitution as it now stands.

Reading the Constitution, you will not find a single phrase that says that a state cannot withdraw from the union. Nor does it say that a state can withdraw. This is not that different from many issues of federal powers. How broad the specific powers granted the the Federal government are to be in practice has been a constant source of argument and litigation since the ink was dry on the original Constitution.

A majority of Americans opposed the Constitution as written at the time. To get it passed by the nine required states a great deal of bribery and intimidation was used. Also, it was promised that a number of amendments would be appended to the Constitution, to make the package more attractive.

Regarding the separation of states, clearly Amendment X, the Tenth Amendment, has the greatest bearing. Many people voted for the new Constitution with the idea that their state could withdraw from the Constitution if the whole experiment did not work out. They feared a central government that could become as tyrannical as the British Empire had been. Hence the amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

I don't think you can get more clear than that without illegally declaring war on your neighbors, as Abraham Lincoln did. No where in the Constitution did it say that the Federal government could prevent a state government from withdrawing. The power to decide whether to be part of the United States was clearly a power "reserved to the States."

To force people to be governed against their will by any government, including the Federal government of the United States, is against the natural right of the people to govern themselves. That was recognized by the architects of the American revolution, or at least was prominent in their rhetoric.

If citizens of a state should ever decide they want to separate from the United States, I suggest they go about it with more care than the State of South Carolina did in 1860.

First, the government of the State in question should write a state law saying that it has they right to separate and is indeed separating. Then this should be the basis of trying a case in the Supreme Court of the United States.

The Supreme Court is most likely, in fact certain, to rule that the State cannot secede by virtue of its own legislation. The point is not to expect an honest verdict, but to get a statement of why they cannot rule themselves, and of the construction of the Constitution the court uses to rationalize this un-democratic ruling.

Then, having been ruled to still be part of the United States, the state needs to introduce legislation in the U.S. Congress allowing it to leave. Its leaders should also try to pass a U.S. constitutional amendment making it clear what the rules are for leaving.

Of course, this whole path could be cut off by a Constitutional Amendment saying, roughly, "no State shall be allowed to separate from the United States, and the President and Congress shall have the power to use the military to enforce this provision."

The United States went to a great deal of trouble to break up the former nation of Yugoslavia just a couple of decades ago. We broke Vietnam in half in the 1950's when we did not like the projected outcome of elections there. I don't see why U.S. states should not be granted the same rights of divorce that the U.S. empire has so gladly imposed on weaker nations.

On the other hand, no one should want a messy divorce. Any such separation should be mutual and amicable.

But, given sufficient unaddressed grievances, a Declaration of Independence, backed by the right to self-defense, may be worth a try.

Free Amina Farah Ali

Amina Farah Ali is an American citizen living in Minnesota currently being tried for allegedly sending aid to al-Shabaab, a political group in Somalia that has been fighting (like pretty much everyone in Somalia) with the corrupt, cruel, unpopular U.S. sponsored puppet government there.

She refused to stand for the judge, one Chief U.S. District Judge Michael Davis. He has banned her from the courtroom. Apparently he thinks the traditional show of respect for the court is more important than following the U.S. Constitution, which states in the Sixth Amendment, part of the Bill of Rights: "the accused shall enjoy the right ... 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 assistance of counsel for his offense."

The Constitution lies in shreds on the floor of Judge Davis's federal court, in more ways than this. While that has always been the way of our national government, while that is simply part of the gruel of law, it is always instructive to look at the details.

I don't see how any honest interpretation of the Constitution allows for Ms. Ali and people like her to be accused of any crime at all. The laws she is being prosecuted under are devoid of any basis in the Constitution. They violate international law and all all reasonable standards of ethical behavior.

In this supposed land of the free this law makes it illegal to send funds or supplies to foreign political groups the U.S. government does not like. You can, conversely, send funds and supplies to foreign political groups the U.S. does like. Even accepting, as I do, that Congress has broad power to do what is "necessary and proper" to carry out its Constitutional duties, this law makes a mockery of several sections of the Constitution.

It is also yet another instance of the U.S. government claiming jurisdiction beyond its own borders, a policy that has always infuriated the various nations we have interfered with and made war upon.

Did Ali, in raising $2,100 in pledges to send to Somalia to fight against a gang of thugs flooded with tens of millions of dollars of U.S. taxpayer provided "support", commit treason? This is the main question that needs to be asked. If she did not commit treason, then the law and the prosecution, in fact all the acts of Congress, President Obama, and their court system, are simply overreach.

The U.S. Constitution is very clear about treason (the Funding Fathers having just escaped with their lives from being treasonable to King George): "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." [Article III, Section 3] Note the word only. It colors the entire section.

Ms. Ali has certainly not levied war against the United States of America. Perhaps she gave aid and comfort to al-Shabaab, but al-Shabaab is the de facto government of Somalia, not the "transitional" U.S. paid puppet government. According to many treaties we have signed the U.S. is supposed to recognize de facto governments. Not hire thugs to set up puppet regimes.

Al-Shabab is certainly an enemy of the U.S.-made inflatable-doll "government" of Somalia, but anyone in their right mind in Somalia would be. Who wants to be bossed around by a government that you can't even vote for or against. By that, I mean the U.S. government. If Somalia is U.S. territory, shouldn't they get at least two U.S. Senators, a proportional number of Representatives, food stamps, and Social Security? I've noticed food stamps really cut down on opposition to the government.

Suppose I were elected President. No, I'm not running. But I would recognize the de facto government, maybe governments, of Somalia. That is the right thing to do. And suddenly Ms. Ali there is no longer aiding an alleged enemy of the U.S., but an ally.

Making list of enemies in foreign civil wars might seem necessary. I wish General Franco had been declared an enemy of the U.S. in 1936, then we probably could have skipped that entire World War II thing, and the Holocaust, and the occupation of Palestine by Israel. But the Catholic Church loved Franco and its adherents mostly voted Democratic in the U.S., so President Franklin Roosevelt maintained neutrality. So I admit there is a pragmatic argument to be made, but there is also a Constitution to try to keep out of the shredding machine.

Treason is a serious thing. Spying for a foreign nation might amount to treason, even if we were not at war with the nation spied for. But American citizens also have the right of free speech. The Supreme Court, in its wisdom, has declared that money is speech, at least when rich people and corporations corrupt the electoral process with it. If money is speech, then it seems to me Ms. Ali was engaging in speech, not treason. Of course you can expect the jackals of our Supreme Court to say that money is speech when they want it to be, and not when they don't want it to be.

We Americans are supposed to have a right to disagree with our government. They call that free speech. We also have a right to assemble with people who agree with us; that is the right to assembly.

If liking or not liking some political group in a foreign nation becomes treason, then free speech goes out the window. If Congress can declare foreign groups to be enemies for purpose of treason, what would prevent it from declaring domestic groups to be enemies for purpose of treason, except for decency, which is not something you want to rely on from politicians?

As far as treason goes, I think the only reasonable interpretation of the word "Enemy" is a nation with which we are at war. If the U.S. Congress had recognized al-Shabaab as the government of Somalia and then declared war on Somalia, I might not agree with them, but I could agree that once war is declared, the U.S. has a clear enemy, and it could be treason to aid them.

If al-Shabaab made an attack on or within U.S. territory, the Federal Government would have clear cause to deal with the crime, and with any American citizens aiding in the crime. You don't need to invoke the treason clause.

Neither of those situations fits the facts of Ms. Ali's case. She likes a particular "faction," really the de facto government, of Somalia. She sends them some help. Her actions are political, and do not constitute treason. American history is full of cases where our citizens, of their own initiative, have given verbal or material support to political factions outside the U.S. It is our right as human beings, and I believe it is a right covered by the Ninth Amendment (which is too little asserted):

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

Note: my defense of Ms. Ali's rights in no way is meant to endorse or support al-Shabaab or any other armed faction in Somalia. I think they should all declare a peace and organize their society in a peaceful, humane manner.

Supreme Court: No Right to Class Action

The gruel of law is getting ever thinner for poor consumers. The Supreme Court of the United States ruled on April 27, 2011, in AT&T Mobility LLC v. Conception et ux., that businesses (mostly corporations) can protect themselves from class action lawsuits and arbitration by simply including a clause to that effect in contracts they force consumers to sign.

Justices Scalia, Roberts, Kennedy, Thomas and Alito voted for AT&T, while Justices Breyer, Ginsburg, Sotomayor and Kagan sided with consumers on this issue (5 to 4 in favor of corporations v. real people).

What does this mean? It amounts to a license to steal, if by "steal" one means to take unjustly, rather than to take illegally.

Here's how it works. You want to buy a product or service, but Xample Corporation, like all corporations, requires you to sign a Supreme-Court approved contract to make the purchase. The contract says you cannot sue, you must arbitrate if you have a complaint, and you must arbitrate alone. You cannot join in a class action arbitration to spread the costs of an attorney over a large number of your fellow customers of the Xample Corporation.

Xample has your credit card, and you discover that Xample has charged it $30 more than you thought you were supposed to be charged. You complain to Xample, but they refuse to refund the $30. Your option under the gruel of law? You can call the police, but they will judge this a civil, contractual matter, because the criminals at Xample got incorporated before they over charged you.

You can fire bomb Xample corporate headquarters, but that seems extreme over $30, it does not get your money back, makes you a criminal (the police react differently when they get a call from Xample about trouble makers), and could get you killed.

You can report it to the Better Business Bureau, who will listen to you and then find Xample is in the right. When other people look up Xample at BBB, they will see that "all complaints have been resolved" and Xample gets their highest rating.

You can hire a lawyer. Hundreds of thousands of dollars in legal expenses later, you might get your $30 back. On the other hand, you might lose in court (after all, its the same court system headed by the Supremes), and be ordered to pay for Xample's army of lawyers, which almost certainly include former DA's who should have protected you in the first place.

Or you can eat it. 99.9% of consumers will eat it. A smallish local business that rips off 1000 customers this way will net $30,000. They might be held in check by the idea of 1000 local people angry at them.

But suppose you are a cellular telephone company and you did this to say, 10 million people during the course of a fiscal year (maybe tucking in $3 or so per monthly bill). That is a tidy $300 million in profits handed to you by Scalia, Roberts, Kennedy, Thomas and Alito. Send the boys a gift basket. Xample stockholders will be happy, and the CEO will get a $45 million bonus for his efforts.

What should be the rule of law is really the gruel of law, and it is getting thinner all the time.

So be careful what you buy, and what contracts you sign, and if you want the full protection of the Law, and something better than gruel to eat, be sure to be born into the ruling class of these United States of America.

See also:

Supreme Court Allows Contracts that Prohibit Class-Action Arbitration [by Adam Liptak, New York Times]

Supreme Court Dictates Corruption

The Supreme Court, not for the first time in its history, reminded us yesterday that in the end, it is Supreme. In Citizens United v. Federal Election Commission, 08-205, they ruled that business corporations can spend unlimited money influencing political elections, even though Congress said they couldn't. At times like these American citizens seem to live in an oligarchy, not in a democracy, or even in a republic. [See also America: Republic or Democracy]

Recap: in 1772 the high court in Great Britain ruled, in the Somerset case, that a slave became free simply by stepping on British soil. The slavers of Virginia and their lawyers decided that they really did not want to be part of the British aristocracy in that case. So they united with New England merchants who were unhappy for other reasons, and launched the American Revolution.

During and after the revolution, the thirteen allied states operated under a document called the Articles of Confederation. Under that constitution, the federal aspect of government was weak. This created danger for wealthy Americans, who wanted a federal army available to crush any group of poorer citizens who might get dangerous ideas. Like that every adult male should have the right to vote, as in Pennsylvania. Or that taxes should not ruin a farmer, as in Massachusetts. So they (the infamous they) held a meeting and wrote a new Constitution for the thirteen states. Most people did not like this new Constitution, but mainly by force and fraud it was put into place. (See the Anti-Federalist Papers for the arguments against the Constitution. See any honest and detailed history book about the period for how this document was imposed.) The people who opposed the Constitution at least managed to get it amended with the Bill of Rights. But the new federal government, led by George Washington, showed it could do its duty by crushing the Whiskey Rebellion.

Most people thought the Congress would become the supreme branch of government under the Constitution. Some feared the Presidency would eventually become supreme. They were all wrong. In 1803, in Marbury v. Madison, the Supreme Court declared that it was supreme. The ruling class took a good look at that idea and liked what it saw. Supreme Court judges are not elected, and they serve into extreme old age.

For instance, the Supreme Court declared (in Dred Scott, 1857) that slaves did not become free when they stepped onto the soil of a free state. In fact, there was no such thing as a free state. The United States were one big slave plantation, according to the Supremes.

Which shows an important point: you can trump the Supremes, but it isn't easy. To get rid of slavery it took more than just an amendment to the Constitution; it took a civil war, then some Amendments that were passed while the slavers lost the right to vote for a while.

In fact, with the Supremes in charge, even amending the Constitution may not get you what you want. Take the Fourteenth Amendment. It was meant to make human citizens equal, regardless of race. But the Supreme Court decided it did not protect black citizens (culminating in Plessy). Even though the word corporation is not in the Amendment, the Supreme Court declared, in Santa Clara in 1886, that business corporations are covered by the Amendment. [See Santa Clara Blues: Corporate Personhood versus Democracy]

So here we are. Business corporations can spend unlimited money on "free speech." They already buy and sell most American politicians, and both the Democratic and Republican Party, but this gives them even more leverage.

But did not candidate Barack Obama offer us hope? It was a five-to-four decision, so maybe one of the majority will die. Then Barack can put in a Supreme who is not owned by the ruling class. Ha, but Barack himself is owned by the ruling class. As he showed by continuing the war in Afghanistan, which only benefits merchants of death.

Constitution and Commerce

I just learned about the "dormant commerce clause" from Jane Anne Morris's recently published Gaveling Down the Rabble. Morris presents difficult material in a witty and insightful manner. Her book is about how the commerce clause was used to create a free trade zone in the U.S.

The Commerce Clause, of course, is in the Constitution of the United States of America. Most national law in America is enforceable inside the States because it is tied ("pegged") to the Commerce Clause. This is the full extent of the clause, from Section 8 of Article I:

"Congress Shall have power ... to regulate commerce with foreign Nations, and among the several States, and with the Indian tribes;"

According to Morris, in legal jargon "dormant commerce clause" does not just mean that Congress is not exercising its power to regulate commerce. The theory of the dormant commerce clause went through three phases. In the first phase, starting in 1829 with a Supreme Court decision, dormant did mean Congress had made no law about a particular commerce issue. The Court ruled that if Congress did not act, individuals States were free to act to regulate their own commerce as they saw fit.

In Phase II, running from 1851 to until 1876 (a period of time when corporations, monopolies and trusts came to dominate the American economy), the Supreme Court ruled that when Congress was silent, it was up to the Supreme Court to decide whether states could act. The Court wanted to help corporations reach national markets. It started interpreting free trade to mean not just that goods were not taxed when they moved across state borders, but that local laws and regulations that impeded any business operating from out of state were unconstitutional.

In Phase III, starting in 1876 and running up to the present, dormancy and the Constitution were turned on their head. The Supreme Court ruled that when Congress was silent, the states could make no law regulating trade (or a particular article in commerce). States could only regulate trade to the extent Congress specifically allowed to them.

With that turn the power granted to the federal government to regulate commerce "among" the states became the power to regulate all commerce, including commerce that stays in any particular state.

In the 1960's civil rights legislation needed to go beyond asserting the right for all adults to vote (until then Democratic Party denied non-white Americans the right to vote in the former states of the Confederacy). The Federal Government wanted to say that a black American could go anywhere a white American could go. If the owner of a particular restaurant in a particular state did not want to serve food to blacks, the federal government wanted to be able to prosecute the owner.

Rather than basing such legislation on the 14th Amendment, it was based on the Commerce Clause. The idea was that Congress can regulate all commerce, so it could regulate commerce at a particular restaurant, so it could say black Americans could eat, or work, at that or any other restaurant or establishment.

Racist segregationists asserted "states' rights," correctly pointing out that the commerce clause was not meant by the writers of the Constitution to allow the Federal Government to boss around the owner of a small store.

Civil rights activists and sympathizers defended the federal interference with local business people, and thus defended the dormant commerce clause. For decades anyone who mentioned "states' rights" was assumed to be, at least secretly, a racist.

Yet the right to abolish slavery in a state, before the Civil War, had been states' rights. The infamous Dred Scott Decision (brought to you by the Democratic Party) declared that northern states had no right to make slavery illegal inside their borders.

Powers are two edged swords. Most people are for states rights when that gets them what they want; against states rights when that would go against my desires. The Supreme Court is no different. There was a fear that the current conservative court might be generally sympathetic to states rights arguments. Instead they have favored states only when that helped their conservative agenda. With respect to the commerce clause, they have no interest in states rights.

See also states' rights at wikipedia

Is America A Democracy?

Is America a democracy? Is it a republic? As I explained in America: Republic or Democracy?, a nation can be both. In broad terms I think it is fair to say the the United States of America is a republic that is also a democracy. Call it a democratic-republic (but also recall that some 20th century nations that styled themselves "The Democratic Republic of ..." looked suspiciously like dictatorships).

Here I want to go a bit deeper into the idea of whether the United States of America is a democracy. The long-term historical trend has been to give more groups of people the right to vote in elections. In the 20th century women and people not of European descent gained the right to vote. The voting age was also lowered to 18. This would strengthen the democratic element of our republic. However, this broadening of the right to vote does not insure that the majority view on a particular issue becomes law.

It might be fair to call America a careful, conservative democracy. Suppose a minority position becomes a majority position, as determined by polls. It may take a long time for the majority's view to become policy or law. It is possible that elected officials may realize public sentiment has changed and make appropriate changes quickly, but that seldom happens. Representatives tend to remain loyal to the groups of people that got them elected. So those who oppose the change, or at least some of them, must be voted out of office.

Elections are held every year, but most terms of office have a two year minimum. Let's focus on the national level. The House of Representatives is re-elected every even-numbered year. To get a new majority, in tune with changed public opinion, could take up to two years, depending on where in the election cycle the change of opinion took place.

But only one-third of the members of the U.S. Senate are elected every two years. Each Senator is elected for six years. So it could conceivable take six years for the new majority to emerge in the Senate. And the President can veto the work of a mere majority, so a sympathetic President would be needed, which could take four years.

Even then, as we have seen in U.S. history, the Supreme Court could find reasons to block change. Since the Supreme Court is not elected, but members are given life time appointments by the President, it can easily take a decade for a change to take place if the Supreme Court opposes it. On the other hand, on some occasions the Supreme Court, in deciding a law case brought before it, has made sweeping changes in the laws by a single ruling. These rulings may or may not reflect the sentiments of the majority of citizens.

Even the above scenario assumes an issue is important enough to be the deciding factor in elections. But issues are bundled together so that the voters cannot always get what they want. You can vote for only one person in the House of Representatives. Generally, the set up is that the choice is between a Republican Party candidate and a Democratic Party candidate. Perhaps neither candidate is willing to work for the majority opinion on a particular issue. Or voters, and those seeking their votes, prioritize a different issue (taxes, abortion rights, immigration, etc.) over the one where opinion has changed.

In fact, because of the necessity of bundling issues when voting for candidates, even when there is a clear majority on a particular issue, there may never be appropriate legislation passed on that issue.

Does that mean that the process is not democratic? I think that would be too harsh of a criticism. To a large extent it is an unintended consequence of the republican (that is, representative) structure of our government. Some states get around this problem by allowing for referenda (votes on a particular issue by all of the voters). But there is no mechanism for a national popular vote on a single issue.

Knowing that bundling is part of the mechanics of government in the United States, special interests have every reason to thwart the will of the majority by affecting how issues are bundled. Take "wasteful government spending." One person's wasteful spending is another person's job or profits. If you ask Americans if they want to "eliminate wasteful spending at the Pentagon," they will almost all say yes. But no defense contractor thinks his profit centers are wasting the taxpayers' money. You can't run for Congress with eliminating Pentagon waste as your main issue. The other candidate will just say she's against waste too. There is no election advantage in it. So it never rises to the top of the agenda of elected officials. The same is true, most of the time, of waste at other agencies. It is true that public interest groups are sometimes successful at exposing waste. Before he became President, Harry Truman is reputed to have done a good job with his Senate committee to investigate and eliminate wasteful military spending. But generally speaking, waste is part of the package.

The U.S. Supreme Court is the least democratic, most conservative of our institutions. Of course the Supreme Court couches its decisions based on its interpretation of the U.S. Constitution, which is quite difficult to amend. In reality the Supreme Court has a long record of interpreting the Constitution to suit itself. That is why the appointment of a new Supreme Court judge or two can have greater affects on American law than almost any other event. But it is important to remember that the U.S. Constitution can be amended. In the past, amending it has often had a greater affect on government than electing whole new Congresses, Presidents, or even Supreme Courts. It is surprising that so little effort is put into amending the Constitution. There are many reasons for this, but mainly it is not a priority for the major political parties. It requires a lot of hard work to get a Constitutional amendment passed, and most attempts to amend the Constitution fail.

After the Supreme Court, the national institution that most resembles an undemocratic Republic rather than a Democracy is the U.S. Senate. There are two major problems with the U.S. Senate, if the goal is democracy. One is that there are so few Senators and so many Americans. At the time I am writing the population of the United States is about 305 million, so on average each Senator could be said to represent 3 million people. In California two Senators represent 36.5 million people. When you represent that many people, who do you listen to? At the other end of the spectrum is the state of Wyoming, with a population of just over one-half million people. That means that the Senators from Wyoming can be in closer contact with their constituencies. It also means that special interests operating at the national level can put unduly significant amounts of money into the election of Senators from states with small populations. Even without interference by special interests, small-population states tend to be rural. In the U.S. Senate rural populations have far better representation per voter than urban populations. This violates the basic rule of democracy: each citizen's vote should count the same.

Finally, there is the question of money. Citizens may know very little about the citizens who are seeking public office beyond what the campaigns choose to tell them. Usually, but not always, in the United States the candidate with the most money wins. Therefore campaign donors may influence policy more than voters. Both nationally and in some states there have been attempts, broadly called campaign finance reform, to lessen this distortion of democracy. Some have been relatively successful, for instance limiting how much money any one person can give to a campaign for Congress. Others have failed, in particular the idea of publicly financing campaigns. Special interest groups try to kill or maim these laws, and if they are passed set to work to do end-runs around them. The ability of some candidates to raise more money than the other candidates could get from public financing also tend to make these laws irrelevant.

Democracy in itself accomplishes nothing. In a democracy we may have eliminated political violence, but in the struggle for control of government there can be the equivalent of an ongoing, but very civil, war. Those who work the hardest, or have the money to hire the hardest election workers and lobbyists, have an advantage over those who merely have an opinion.

There are specific structural reforms that might make America even more democratic, such as electing the Supreme Court, or recasting the Senate so that each Senator represents the same number of voters. However, already democracy is a big playing field. Individuals and groups of people have many opportunities to push for what they want. If you feel you are in a majority and yet not getting your way, the thing to do is to push harder. If you are in a minority, but feel you are in the right, you need to work harder to bring your views to others.

If you find that a wealthy minority is bribing (perhaps legally, with campaign donations or perks from lobbyists) your representatives, you should probably get yourself another representative. If a wealthy minority is bribing both major parties, help elect independent third party candidates that share your views of the problem.

Democracy is a big notion. No one institution or marker determines whether a nation has a democratic form of government, or the reality of democratic self-rule. Even in a democracy there may be widespread injustice, environmental destruction, bad cultural values, violence, economic disarray, and just plain bad decision making by fully democratic institutions. But compared to dictatorships and other forms of minority rule, democracy puts people in the best position to reform their society and governance in a peaceful way.

Supreme Court Rules on Gun Control Laws

Before plunging into a commentary on this week's Supreme Court decision on gun control, note that I added two book reviews to iiipublishing.com, of Memoirs by Harry S. Truman and of How Nonviolence Protects the State by Peter Gelderloos.

I am in agreement with the basic line of reasoning of the United States Supreme Court in their opinion that the 2nd Amendment to the U.S. Constitution does recognize the right of an individual citizen to own firearms, within reason. [See full text of DISTRICT OF COLUMBIA ET AL. v. HELLER]

Liberals, and other gun-control advocates, have long argued that the right to be armed only applies to a "well regulated militia." Before examining the issue, here is the full 2nd Amendment (Ratified December 15, 1791":

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This section of the Constitution, like the rest of it, was not handed down by some God, but was created by a committee of men (in this case, white, prosperous, male men). I think guns are a problem for our society. I find some of the arguments for gun-control to be strong. The problem for the gun-control advocates is that they want the 2nd Amendment to have a meaning different than what it actually has. Even in law books I have noted arguments that simply ignore history and contextual clues to the meaning of this important section of our Constitution.

If you don't like the 2nd Amendment, you should try to amend the Constitution. Misreading the Amendment just shows people how dishonest you are.

Think back to the general context of the writing of the Constitution and the subsequent ratification of the Bill of Rights. Each state had its own government, and they were united under the Articles of Confederation during the Revolutionary War. Most people were content for the States to merely be confederated, but some wanted a stronger central government, in particular the wealthiest, most powerful and most conservative families. In the late 1780's in many States debtors and creditors were practically at war with each other; the economy was limping along; and the debts of most States and the national government that had accumulated in the Revolutionary War were mostly unpaid. In Pennsylvania the legislature had been taken over by small farmers, to the discomfort of its previous controllers, the merchants of Philadelphia. Then Shays' Rebellion took place in Massachusetts. Rebellion against England was one thing; rebellion against the ruling classes of the States was intolerable to them.

A convention to amend the Articles of Confederation had been called to take place in Annapolis [Annapolis Convention], with the sole purpose of the agenda being to facilitate trade and commerce. But a quorum did not show up. Panicked by Shays Rebellion, the representatives of the most powerful men in the Americas then met in secret and decided that to insure their rule and the security of their private property, the Articles would have to be thoroughly re-written, with much power taken away from the States and invested in the national government. Yet there were many conflicts of interest among these ruling men, and in some cases they did look to the good of the entire nation. The result was the proposed U.S. Constitution.

A majority of citizens did not like the proposed Constitution, if only because it was new and strange. When allowed to vote on it, a majority voted against it. However, by combining the use of some pretty dishonest tactics with a promise to add a Bill of Rights to the document as soon as possible, eventually all the states chose to join the new national government [and all states believed they could voluntarily leave a government that they voluntarily joined].

So when you look at the first ten amendments to the Constitution, what you are seeing is a manifestation of the concerns of those who opposed a strong central government. They wanted individual rights protected, and one of the most sacred individual rights is to have a say in decisions that are going to be applied to you. Just as citizens did not want decisions made for them in London, they did not want very many decisions made for them by a distant national government.

In particular, they remembered that the London government had sought to disarm them at the beginning of the Revolutionary War. To be disarmed is to be defeated. To be disarmed when another party is armed is to be the slave of that other party.

People feared a strong central government. They did not want the Army of the United States of America to be the sole possessor of armaments. They wanted the states to have militias. And within the states they did not want one political faction disarming another political faction. The best way to insure that is to allow individuals to own weapons or to store the weapons owned by the militias in their own homes. As people had learned in the Revolutionary War, if all the arms were in one place, they were easily seized.

"A well regulated Militia, being necessary to the security of a free State ..." Note it does not say "being necessary to the security of a free Nation," or "being necessary to the security of an individual." A free state is one that cannot have its rights, or the rights of its citizens, trampled on by the national government, or a foreign power, or the national government in league with a foreign power.

I am frankly surprised that the Supreme Court does not want to disarm all Americans. It seems like the very model of an unelected, dictatorial government. But note that 4 members of the Supreme Court did vote to disarm the citizens.

Guns are dangerous. People get killed by accident every year, and many are killed in anger by people who regret such actions later. But intelligence is dangerous, and electing people to govern for us is dangerous; danger lurks even in things we create for our own safety.

If we want to minimize people's desire to own hand guns for self defense, we must first make them feel secure. If we want to minimize crime, we need to minimize economic injustice and maximize education and opportunity. People may have forgotten about the dangers of government, but they cannot forget about the dangers posed by criminals. There are other ways to limit the dangers of weapons besides the draconian gun laws of cities like the District of Columbia.

I am a critic of the Supreme Court as an institution, but in this particular case five people who are actually part of the court made the right decision.