Citizenship, Economy, Free Society

We fought a war for these freedoms

© 2014 Earl L. Haehl: Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

In 1743, Sam Adams and James Otis, Jr, were admitted to the degree of Master of Arts with Honours by Harvard College. These two gentlemen were both allies and rivals over the next few years and the intellectual fathers of the American Revolution in Massachusetts Bay colony.

James Otis, Jr, was appointed advocate general of the vice admiralty court in Boston where he was an advocate enforcing the onerous Acts of Trade of 1751. As the residents of Massachusetts Bay sought extra-legal relief (Messrs John Hancock and Sam Adams being involved in such activity) Parliament came up with the use of “General Warrants” which allowed the Kings officers to search what they chose, when they chose and where they chose without specifics.

In 1761, partly because Gov Bernard appointed Thomas Hutchinson rather than James Otis, Sr, as Chief Justice, the younger Otis resigned his position as advocate general and took up the cause of the merchants of Massachusetts Bay. He did this pro bono or without fee.

His five hour argument in February of 1761, included the following:

A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire.

Does this sound familiar? Does the justification of NSA surveillance by such “defenders of our freedom” as Rep Peter King (R-NY) ring familiar?

James Otis, Jr, had begun his argument with the following.

I was desired by one of the court to look into the (law) books, and consider the question now before them concerning Writs of Assistance. I have accordingly considered it, and now appear not only in obedience to your order, but likewise in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare that whether under a fee or not (for in such a cause as this I despise a fee) I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other, as this Writ of Assistance is.

John Adams, Sam’s more conciliatory cousin who had doubts about independence characterized this as the first act of resistance. It was the first action in an intellectual war of small actions which culminated in the shots fired at Lexington Green on 19 April 1775.

The court, presided over by the corrupt Thomas Hutchinson, rejected the argument. But the speech was amplified and published over the years. In December of 1773 Hutchinson was to be the recipient of a shipment of tea that would be forfeit to his warehouse on 17 December of that year. James Otis, Jr’s classmate Sam organized a costume party (it took place on Beethoven’s third birthday) that result in the tea being tossed into the harbor so it could not be unloaded.

Through the assistance of the anti-federalist movement which in the newly free and independent Commonwealth of Massachusetts included Sam Adams and the sister of James Otis, Jr, Mercy Otis Warren, ten amendments restricting governmental powers were adopted and ratified. These included the Fourth Amendment which reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

After “9/11” supposedly changed “our democracy forever” the United States passed the USAPATRIOT Act which greatly expanded the powers of the US Department of Justice, the NSA (LBJ’s Secret Police) and government in general—we now have a Transportation Security Administration and Department of Homeland Security with seemingly unlimited powers. (I could posit that the events of 11 September 2001 did not substantially change the risk level for the United States but only the fear level.)

This legislation is not “the law of the land” in that it is passed, not pursuant to the powers granted in the body of the Constitution and contrary to the limits on federal power bluntly stated in the fourth article amending that Constitution. In other words, the argument is that an emergency grants extraordinary powers to ignore the basics of governing in a free society. In the 1688 Bill of Rights, the British Parliament objected to standing armies in time of peace—and since 1688 every monarch has assured military adventurism as a means to keeping standing armies. In 1798 John Adams wanted emergency powers because he had a gotten into a shooting conflict with France—his successor refused to enforce those powers. Since 1914 the United States has been in conflict with one or more foes—only twice, 1917 and 1941, have there been formal declarations of war although Bill Fulbright posited that the Gulf of Tonkin Resolution might be so considered.

The advantage to the powers that be of “emergencies” is that the electorate, with a dire threat from the outside, is willing to forgo freedoms in the belief that such willingness will diminish the threat. Ergo, since Muslim extremists were capable of flying a couple planes into buildings we are under threat—although we currently have no enemies with industrial capabilities, having reached a rapprochement with Red China and having caused the downfall of the Soviet Union through a massive spending war. However, we have a “Global War on Terror” as a result of G.W. Bush acting like John Adams on steroids and Barack Obama not being Thomas Jefferson in any sense.

Going back to the Fourth Amendment, James Otis, Jr, began a revolution of thought. As the kernel of the idea grew, it was added to and built up pressure. By April of 1775, the American Revolution was over—what lay ahead was a War for Independence. Yes, for these ideas and freedoms we went to war, not to give power over to a government that took crises as a rationale for going back to a time before it all happened and back to a government that made Leviathan look like a gila monster.

 

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Citizenship

Goodbye federalism

(c) 2012 Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

As I have been re-reading Madison’s notes as edited by Solberg I have picked up on some details that the 23 year old college senior (slow learner) missed. In fact, I would recommend a re-read of a lot of stuff as an adult—you’d be amazed at what holds up and what does not.

But I digress—as most of my friends and relative note…often. Reading Madison’s notes on the federal convention reveals a lot. Many of the debates are still unsettled from day one. What are we as a nation. Do we have a general, national government or a federal republic? I can argue it both ways as my old hero Harold Fatzer did on occasion when he was chosen (by rotation) to write a majority opinion against which he had voted—his majority was solid and well thought out but his dissent was masterful, logical and chiding of the majority. I can write a legal paper on the textual federalism of the Constitution. I fervently support a federal republic and believe the national government has done more to destroy than protect.

I am writing this about the fact and not the law. The Constitution of the United States is regarded as antiquated. Franklin D Roosevelt wrote to Samuel B. Hill, Chairman of the House Ways and Means Committee on July 6, 1935, stating, “I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.” I did not find a quote for his reference to the Constitution as a “quaint 18th century document,” but the sentiment fits with his attitude toward Congress and the Supreme Court. And I would posit that most in elective office agree.

What Hamilton and a number of people at the Convention preferred was a national government—some went as far as to propose the elimination of states. At that point even Madison was in favor of a stronger central government than he was after persuasion by Jefferson during ratification. The argument was that the states were a roadblock to a strong (read militarily powerful) nation. And of course the states were a hindrance to commerce—actually California does not recognize the commerce clause when it comes to firearms and the Ninth Circuit says fine.

If I end up interspersing current events with this it is that the same forces are at work today and this is about where we are. There is no provision in the Constitution for a national police force. The federal government has 150,000 “law enforcement” personnel which essentially constitute a standing army within our borders while the natural defense of society—the militia of the people—is further infringed. George Mason who drafted the Virginia Declaration of Rights wrote in Section 13: “That a well-regulated militia, or composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.” The Department of Homeland Security has become a power unto itself and has voided much of what is left of federalism. Does this bother the electorate—hint, the candidates are both believers in national government. As Clinton and Bush gave up their defense of their gubernatorial powers when they arrived at the juncture of New York and Pennsylvania Avenues, so too will Romney if elected.

The arguments ranged back and forth on the merits of democratic election versus a republic. And at the Convention, there was a compromise. We are told today by those who wish a more powerful and intrusive government that compromise is not a bad thing. The Senate was to be selected by the legislatures of the states as a bone to the republicans. The fear was that a complete democracy would endanger the rights of all. As the growth of democracy gained power in the 19th Century, the Progressives manipulated the Populists into assenting to their power grab and the 17th Amendment was adopted in 1913 leaving the Senate of the United States unaccountable to those states they represent.

The situation we are in now—a national, central and unaccountable government—is not a failure of democracy but rather the natural consequence of democracy. It arises out of a public school system which has, as its primary mission, the indoctrination of the population in the current political system. This sets them up to accept the demagoguery they became acquainted with in school. Unfortunately the progressives have control of education regardless of who holds the government through the NEA and AFT.

The document remains but the reality is different. The courts and Congress cannot control the Executive because they do not have the will. This is not a new phenomenon of the Clinton-Bush-Obama years. Andrew Jackson once said, “Mr Marshall has made his decision, now let him enforce it.”

More quotes:

“I took the Canal Zone and let Congress debate about me.” Theodore Roosevelt whose 1912 campaign made suggestions about the need to revise the Constitution to give the central government more power.

““The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit; and if Congress be overborne by him, it will be no fault of the makers of the Constitution, – it will be from no lack of constitutional powers on its part, but only because the President has the nation behind him, and the Congress has not.” Woodrow Wilson who believed there was a “transcendent constitution” that superseded the dead written document.

So we are here with a national rather than a federal government that Republicans and Democrats alike are comfortable with.

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Citizenship

A case for a change

(c) 2012 Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

There are two major candidates, one of whom will be elected in December, with different aspirations. Mitt Romney wants very much to be President. To that end he will promise anything he needs to promise and will have a tough time following through on those promises if elected. This is not intended as an endorsement of Mr Romney.

Barack Obama, on the other hand, is President. He made all those promises four years ago, and to achieve some he ignored others. He wants very much to transform America. It worked for FDR—four times. It was only after World War II ended and Truman lifted wartime restrictions that the nation began to recover from the recession of 1931.

So let us look at the transformation so far. The “bailout” of the auto industry involved a takeover of two companies in order to preserve the union welfare state of those companies and give the government a “stakeholder” place in decision making. The bankruptcy law was violated and preferred stockholders, many of them public employee and teacher pension funds, were left holding the bag to assure government preferred stakeholders—aka the UAW. When franchises were closed, the fact that some had paid serious money for their franchises was not a consideration. Apparently volume of sales was not either.

Another aspect of the transformation of the auto industry is the new green technology. An example of this is the new Chevy Volt. GM loses $49,000 on every one that leaves the factory in order to reach a price point of $40,000. In addition the taxpayers pick up another $7,500 in a tax credit to bring the price down to a level where people will buy the vehicle.

The genius of the American auto industry has been its ability to produce vehicles that capture the consumer. And scuttle those that do not. They did not have to deal with the fiat that “you will build this vehicle” mentality of the Combloc. The Edsel was a failure—Ford ditched it and followed with the Mustang. Despite Ralph Nader the Corvair was extremely popular—there is a 61 driving around town that is in better shape than Ralph.

Ford escaped the “bailout” by having shepherded its resources to where it would not have to take a reorganization. Not to worry. New EPA CAFE standards took care of the the popular Crown Victoria. The company will survive, but a solid, powerful vehicle has been removed from production. Its replacement, the AWD Taurus-SHO, is unlikely to last as many miles and has a higher price tag to begin with. And with Executive Order 13603 in place, Obama has “authority” to seize industries in the name of national security.

The “bank bailout” saved some companies that should have been allowed a quiet demise. The real estate bubble which brought it down was caused largely by federal requirements to “open up” the housing market. To avoid pressure by compliance agencies, the banks loosened credit requirements to the point that massive groups of people were approved for loans they could never pay. There were people in certain counties in Colorado who were refinancing every eighteen months. There was a joke in the consumer community about using Visa to pay Mastercard—eventually the house of cards (so to speak) tumbles.

As the Congress set about remedying the financial situations there were companies that should have gone under, but were “too big to fail” so they were propped up. The regulations bill that the President signed had not been read by its sponsors. Retiring Sen Chris Dodd said it would take a couple years to find out what was in it.

So we come to the quick fix comprehensive health care reform. Like the financial services bill it was rushed and rammed through without time for reading or reflection. So much for the promise of transparency. What is in it—other than a tax that is unlawful because it originated in the Senate or else in the mind of an intimidated Chief Justice—is not clear. What is not in it is: cost control, frivolous lawsuit control, and cost increase control. Without these, the temporary nature of the bill is apparent—the costs will crash the government.

Then we come to the assertion that the President has authority to order the assassination of anyone he deems a threat to the American people. In asserting this power—which was not asserted in the Divine Right of Kings—the President places himself with banana republic dictators as well as Vlad the Impaler, Caligula, Stalin and Rasputin.

The President has also issued executive orders giving himself authority Congress and the Constitution will not. He tires of waiting for Congress. He has always, from his own statements, been frustrated by the Constitution’s negative liberties. He would like to change this Constitution out for one that mandates redistribution. And he clearly is looking for three more appointments to the Supreme Court in order to achieve this.

Mr Obama recently remarked that is is nearly impossible to effect change from the inside. Perhaps the community organizer needs to get back outside.

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Citizenship, Education

Antique Roman

(c) 2012 Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

 

Never believe it.
I am more an antique Roman than a Dane.
Here’s yet some liquor left. – Horatio in Hamlet act V

It takes awhile to find that line though it rings true to me—it always has and yet it is not found in the memorable quotes because it is not “profound” to English lit professors. I admit to having not read the play itself since high school, following the admonition of my Shakespeare scholar father to watch rather than read.

Why I relate to the specific line is that I, too, am more antique (republican) Roman than 21st Century progressive American. The Roman republic was created when Lucius Junius Brutus defeated the tyrant Lucius Tarquinus Superbus (the Proud) and ended the monarchy in 509 BCE. From this republic which was defended by blood—Brutus watched the execution of his own sons for attempting to restore the monarchy. During the Republic 509-44 BCE the people of Rome began referring to themselves as Citizens and at Brutus’ insistence took an oath:

Omnium primum avidum novae libertatis populum, ne postmodum flecti precibus aut donis regiis posset, iure iurando adegit neminem Romae passuros regnare.
First of all, by swearing an oath that they would suffer no man to rule Rome, it forced the people, desirous of a new liberty, not to be thereafter swayed by the entreaties or bribes of kings.

We have never, since the beginning of the American Republic, been required to take such an oath although we insist on school children repeating a mindless pledge to a flag that was written by a socialist minister and used to enforce a belief in a unitary democracy.

At any rate, the antique Romans believed in defending the Republic but not giving power to a king or a dictator. Unfortunately, as time progressed the Senate allowed generals their way and was happy with conquest. While maintaining the trappings of republicanism, the actual form of government that began to develop was an empire. Cato the Elder, Rome’s Joe Lieberman, would end his senate speeches on any topic with ceterum censeo Carthaginem esse delendam or “in my opinion we should destroy Carthage.” While Republicans would counter this, in 146 BCE Rome destroyed the Phoenician port of Carthage and the die was cast about a century before Gaius Julius Caesar crossed the Rubicon.

At any rate, Caesar was content to keep the fiction of a Republic—the Senate made him dictator for life in 44 BCE. Unfortunately, it turned out to be a shorter term than expected as Marcus Junius Brutus, descendant of Lucius Junius Brutus, led the assassination that got him mention in Dante and Shakespeare. With Gaius out of the way, his nephew Octavian defeated Antonius and Brutus to become Caesar Augustus. Plutarch used the term “fall of the Republic” rather than “rise of the Empire.”

I am more of an Antique Roman than a 21st Centuty progressive. I am a citizen of the Republic.

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Free Society, Preparedness

Night military maneuvers in Massachusetts

(c) 2012 Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

A cautionary tale

There was a night Back in ’75
Or so I’m told, the story’s alive
The officials went out with 800 boots
to confiscate the powder that shoots

And maybe capture a traitor or two
Old Adams was there and Hancock too
There’d be no alarm at Concord of Course
They’d captured Revere, and taken the horse

And there as they arrived at Lexington green
Were armed Minutemen–very few were seen.
The officials alert so quick to the gun
They neglected two men on the run

‘Twas over in minutes- the rebels in retreat
And redcoats marched on up the street,
To Concord where there was powder none
Except that loaded in horn and in gun

While Adams and Hancock who thought redcoats silly
Sat in the coach that would take them to Philly
While the Redcoats back to Boston did go
Pursued by the rebels with no spoils to show

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Free Society

Strategy toward a free society pt1 Where we stand

(c) 2012  Earl L Haehl – Permission is granted to redistribute this in whole as long as credit is given.  Book rights are reserved.
The Obama administration has to go.  While I still hold out some hope that the Republicans might come to their senses, the likelihood is that Mitt Romney will be the nominee.  Quite frankly, Romney’s views are not significantly different than Obama’s.  The only real difference I can see is who they would nominate to the Supreme Court of the United States.  Romney would probably defer to the American Bar Association and some Neocon groups in finding nominees.  This would result in social conservatives who are vanilla on liberty issues.
Romney would probably be unable to formulate a coherent legislative strategy which is not a bad thing in itself–liberty groups would have to push against progressives and conservatives alike, but that is not a change in status quo.
Obama is a committed statist.  He has, in addition to the enemies list most presidents have had, a kill list of those he has decided present a threat to the United States.
One of his re-elect campaign components is his “truth team.”  The following link is an example of what the team does to elevate the tone of the campaign.
Obama’s appointees to the Supreme Court believe in an extremely low threshold for infringing on speech.  They have also indicated a desire to return to the standards of US v Cruikshank on second amendment cases though not on first.  Kagan also declined to recuse herself from a major case involving a statute she had a hand in writing.
Obama’s Attorney General, Eric Holder, currently up for a contempt vote, has as little regard for freedom as the President.  In the Reno Justice Department, Holder was aware of the Mt Carmel massacre and the mechinations to protect an FBI sniper from facing state charges.  He was chief deputy when INS agents and Deputy Marshals kidnapped, using armed force, a six year old Cuban child legally in the country without a custody decision by the court with competent jurisdiction.  (And no, Ms Reno, the child was not returned to his father but to the most repressive regime in this hemisphere.)  Eric Holder has lied to Congress with impunity while prosecuting Roger Clemens for the same thing.  When cornered, Holder’s general argument is that it is because his accusers resent a black man being attorney general.
Obama’s first chief of staff was an intelligence officer with the IDF during the first Gulf War.  Is this a serious conflict realizing that American interests in the middle east may not be the same as those of Israel.
In NDAA2012, Obama made a show of a veto threat because of provisions permitting the indefinite detention of Americans on US soil without habeas corpus or trial.  According to Sen Levin, the President had demanded the provisions.  To make everyone feel better the President said this administration will not use these provisions–he did not say he would not.  If reelected Obama will begin a new administration at noon on January 20, 2013.  Another provision of NDAA is the tacit repeal of the Posse Comitatus Act which prohibits use of Army and Air Force personnel in civilian law enforcement.
Another blatant grab of federal power is an Executive Order which gives the President the power to seize industries when the incumbent judges that there is an emergency.  In other words, the order gives the current or future president a power the Supreme Court told Harry Truman he did not have.
There will be more to come including a discussion of alternatives.
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Free Society

Citizens United

Right decision – Not the strongest theory

There is a serious problem with the reaction to the Citizens United decision. It revolves around the lack of critical thinking fostered by our education system. The history teacher I had in eighth grade tended to explain the Bill of Rights from a book he had been assigned in college. So he had neat phrases such as “the Founders did not understand the problems of our changing society,” followed by “the Founders were deliberately vague so that we could reinterpret based on changes in society.”

On the other hand I did have a teacher in eleventh grade (his masters was from Kansas State University where I had planned to get a PhD, but thought better of it) who liked going to original documents. And I had a teacher in college who was a Democrat who talked like Barry Goldwater and assigned original sources. So I have examined documents, cases, and extant commentary from the period.

Citizens United involves the First Amendment. To be clear we shall put the text right here.

 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 This is not a grant of rights to an individual. Rather it is a prohibition on governmental action. The argument I heard in eighth grade was that it did not apply to commercial speech. It was 1958 and we were in the midst of arguments in the press on “false advertising” and “advertising that was harmful.” Now, looking at Ben Franklin’s Pennsylvania Gazette you will notice advertising on Page 1. I wrote an essay in high school journalism on the annoyances of radio advertising, holding up the BBC (which I could get on shortwave) as an example. My teacher, deciding this was a “teachable moment” explained that BBC was a government enterprise, somewhat like Pravda and was this what we really wanted. It was a real fiery essay too, but I did rewrite it sans feu and it was not the same. She also showed where I could find the First Amendment and the report of the John Peter Zenger trial.

At any rate Citizens United is a case about political speech. It arose out of the McCain-Feingold Incumbent Protection Act which limits political speech. The public is best served when the media and advocates refrain from writing about incumbents in a window before an election. While the recognized media are “protected” by the First Amendment, McCain-Feingold took on corporations and unions. The theory was that they are not “persons” for the purpose of First Amendment protection.

The Court went off into drivel about the fact that corporations (unions are also corporations) are persons for the purpose of suing or being sued. This is what causes most of the rancor on the part of progressives. What the Court should have done is gone back to the most liberal defender of the First Amendment, Hugo Lafayette Black who argued that “Congress shall make no law,” means “Congress shall make no law.” This was a running argument between Black and his colleague William O. Douglas who advocated a “balancing test” and seldom met a regulation he did not like.

That theory, however, would have required the Court to throw out all of McCain-Feingold if not the entire federal election law itself. That is something the Court has not done for some time—in 1939 they upheld the power of the government to tax a sawed-off shotgun under the National Firearms Act but used a test of military utility to declare that the weapon did not fall under the Second Amendment. Every decision seems to leave further litigation as an option—expect McCain-Feingold to appear under a different name before a future court,

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