Archive for ‘Constitution’

12/26/2016

WHAT WILL TRUMP DO AT HOME?

Abortion: Trump will soon have the power to nominate Supreme Court Justices. One constitutional issue remains a woman’s lawful right to an abortion. At one point in the campaign, Trump was of the opinion that women who have abortions should be jailed. While that will not happen, the Court is now likely to further restrict 5th and 14th Amendment liberty rights as to abortion. On top of that, the Republican Congress will cut funds for Planned Parenthood, even though 90% of their activities have nothing to do with abortion.

Campaign Finance: With a Republican Congress, there is no hope any useful legislation restricting big money in politics will be enacted. Nothing will change. Lobbyists will continue to inhabit the swamp. Big money will not be drained out of it, as Trump promised.

Cities: Nothing much will change in black inner cities. The Republican Congress doesn’t care much about them and Trump himself knows little about how poor people actually live. Trump said blacks would have to be crazy not to try something new with him, but they knew better, and most voted for Clinton. While Ben Carson and other token blacks will be paraded around by Trump, nothing much will improve in minority communities.

Citizenship: Trump said he wanted to end constitutionally protected “citizenship by birth.” With regards to persons born in the U.S., the 14th Amendment makes it crystal clear that they are both citizens of the U.S. and the state where they reside. Trump apparently doesn’t understand how difficult it is to amend the Constitution. Outlawing citizenship by birth will never happen.

Economy: Trump talks about creating a 6% to 7% growth rate. I don’t think he knows what he’s doing. He’s not going to be able to stimulate such high growth. The greater fear is that his lack of understanding of international trade may trigger another recession or depression.

Environment: There is no doubt the oil and coal industries will benefit under Trump. With an Exxon chief running the State Dept., they will get what they want in global trade. Environment treaties that are in the way will be abrogated. The Keystone Pipeline will be completed. Any Native American who gets in the way will be dealt with the same way the U.S. has always dealt with Indians.

Government: Like most Republicans, Trump said he would eliminate some government agencies and departments. Sadly, the Republican Congress will only propose eliminating the most effective and useful regulatory bodies, and they’ll expect Trump to sign such bills. Since I doubt Trump will actually read any law presented to him, he’ll probably just go along with whatever they give him.

Guns: There is no hope during the next four years that anything useful will be done regarding the proliferation of guns, or the massacres they routinely generate. The Supreme Court will uphold the right wing’s twisted view of what the Founders intended by the Second Amendment.

Health Care: Trump repeatedly said he would repeal and replace the Affordable Care Act. The question is with what? He said he opposes the more efficient single-payer model. So, if we continue using private insurance, how are we going to keep working people insured without subsidies? The only alternative is to regulate prices in the health care industry. Since “regulation” is a dirty word to most Republicans, no useful law will come out of this Congress. Health savings accounts are not going to cover galloping inflation rates in the health care industry. There is also little chance a Republican Congress will break up the virtual monopolies that exist in the health care delivery system, or in the pharmaceutical sector. Without subsidized insurance, people will either just die, or they’ll return to the more expensive government-subsidized emergency room.

Presidency: Since Trump has not previously been elected to anything, not even dog catcher, he will be on a tremendous learning curve. He will soon learn that the 435 House members and 100 Senators collectively have much more power than he does. While he can use the “bully” pulpit (a description that certainly fits), Congress controls the purse strings, and nothing happens without money. To be sure, Trump will continue to blame everyone but himself, but in the end, he may be forced to deal.

Religion: The U.S. Constitution endorses no religion. It doesn’t even mention the word “god” or “Christianity.” It speaks of religion in only two places. First, it bars all religious tests, and second, it prohibits an establishment of religion, such as Christianity. A Muslim U.S. Citizen, who happens to be a follower of Islam, is fully protected under our Constitution. Trump cannot do anything to them based on faith alone. He is not going to round up Muslims, or make them register, or do any such things to American citizens.

Retirement: During the campaign, Trump said he would not touch the retirement age. The problem is the Republican Congress doesn’t appreciate how much ordinary elderly people need their Social Security checks, and they will propose to raise the age. If this happens, I would hold Trump to his word and ask for a veto.

Supreme Court: While campaigning, the Republicans made Trump sign a paper promising to nominate one of 11 pre-approved right-wingers to the Supreme Court. Any one of them will be readily accepted by the Republican Senate. As a result, for perhaps another generation, the Court will remain conservative, particularly if Kennedy, the remaining Republican swing vote, or one of the four Democrats retires or dies.

Taxes: Like a typical Republican, Trump promised to lower everyone’s taxes. I’m sure the Republican Congress will gladly give him several tax reduction bills, and he will sign them. As a real estate tycoon, Trump will first and foremost help the real estate industry (as if they need additional tax breaks). He will also cut taxes for big business. The problem with taxes is the Republicans love to spend on costly military adventures, but they fail to raise taxes to pay for them. One thing is almost certain, Trump will not even begin to move us towards a balanced budget, or a lower national debt. The debt will almost certainly get much worse under Trump. I’m still hoping that some whistle-blower at the IRS discloses Trump’s tax records, so we can finally see who he’s been dealing with, and what if any taxes he’s paid.

Transportation: Although the Republican Congress has no use for public works projects that might put regular people to work (as evidenced by their failure to support Obama’s Great Recession proposals), they will throw Trump a bone, and they’ll give him something to sign creating some jobs, fixing roads and bridges in rural areas. This will be so he can say he did something.

Wages: While Trump acknowledged that working people have not had any real wage increases in a long time, there are only a few ways to increase incomes. One is to raise the minimum wage, which is something the Republican Congress will never do. Another is to strengthen unions, which again the Republicans will not do. So, it is unlikely wages will improve under Trump. The only possibility is that they go up due to supply-and-demand employee shortages. If this occurs, it won’t have anything to do with Republican policies or Trump.

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02/14/2016

OBAMA ENTITLED TO COURT APPOINTMENT

Since the death of Supreme Court Justice Antony Scalia, the Constitution requires a replacement nominated by the President. Assuming an academically qualified nominee, the Senate should approve. The fact that President Obama is in his last year is irrelevant and no reason for the Senate to refuse to consent.

During President Washington’s eighth and final year, he named two Justices to the Court, Samuel Chase on Jan. 27, 1796, and Oliver Ellsworth on March 4, 1796. President John Adams sent Chief Justice John Marshall on Jan. 31, 1801. This was after he lost the Nov. 1800 election to Thomas Jefferson and before the President-elect was sworn-in in March.

In 1836, President Jackson’s final year, Justices Roger Taney and Philip Barbour both started on March 15. Jackson also elevated Justice John Catron on March 8, 1837, after President Van Buren won the Nov. 1836 election and while Jackson was packing his bags. President Tyler picked Justice Samuel Nelson for the Court on Feb. 14, 1845. This was after President Polk won the 1844 race and Tyler was going home.

In his last year, President Hayes presented Justice William Wood to the Court on Dec. 21, 1880. He did this after President-elect Garfield won the Nov 1880 election and Hayes was a lame duck. President Cleveland put two Justices on the Court in 1888, namely Justice Lucius Lamar on Jan 16, 1888, and Justice Melville Fuller on Oct. 8, 1888, just one month before Benjamin Harrison defeated Cleveland.

During his final year, Republican Ben Harrison named Justice George Shiras on July 26, 1892. He also added Justice Howell Jackson, on Feb. 18 1893, after losing the Nov. 1892 contest. During his last year, President Taft sent Justice Mahlon Pitney on March 13, 1912. President Hoover elevated Justice Benjamin Cardozo on March 2, 1932, before being soundly defeated in November.

President Franklin Roosevelt picked Justice Frank Murphy on Jan. 18, 1940, during his eighth year, and before announcing an intent to seek a third term. During the last year of his first term, President Nixon appointed Justice Lewis Powell and Justice William Rehnquist, both on Jan. 7, 1972. President Reagan nominated Justice Anthony Kennedy, who assumed the bench on Feb. 18, 1988, during Reagan’s eighth and final year.

We had elections in 2008 and 2012 as to who should name our Supreme Court Justices. Obama won both. We don’t need or want another referendum. The fact that Republican leader Sen. Mitch McConnell of Kentucky vowed to deny Obama his constitutional right to replace Scalia is frankly no surprise. McConnell is a crusty old Southern obstructionist, born in Alabama. Some bad attitudes just never die.

While Wis. Sen. Tammy Baldwin, a Democrat, can be relied on to consent to Obama’s nominee, the same is not true of Republican Sen. Ron Johnson. If he joins McConnell and obstructs the will of the people, this November, every Wisconsin voter should help former Sen. Russ Feingold drive Johnson from office.

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12/24/2014

Constitution of U.S. in 1750 Words or Less

The U.S. Constitution created a House and Senate. (1-1-1) House terms are for two-years. (1-2-1) House members are directly elected by the people. (1-2-1) Representatives must be at least 25 and citizens for at least seven years. (1-2-2) House seats are apportioned equally based on a census taken every 10 years. (1-2-3) Washington DC receives one House seat. (A-23) Vacancies are filled by elections called by state executives. (1-2-4)

Senate terms are for six years. (1-3-1) Senators, initially chosen by state legislatures, are also directly elected. (A-17) Senators must be at least 30 and citizens for at least nine years. (1-3-3) Each state is entitled to two Senators, regardless of population. (1-3-1) Senators are divided into three classes; one-third are elected every two years. (1-3-2) The Vice-President serves as the President of the Senate (1-3-4)

The time, place and manner of elections is determined by Congress. (1-4-1) Citizens 18 years of age may vote. (A-26) Those born in the U.S. or naturalized are citizens. (A-14) Congress may write rules for naturalization. (1-8-4) No one may be denied the right to vote due to race or sex. (A-15, A-19) No poll taxes are permitted. (A-24)

No member of Congress may be subjected to a religious test. (6-3) Members are compensated. (6-1) Pay changes cannot become effective until after the next election. (A-27) The House and Senate determine if those elected met the qualifications for office (1-5-1) Members may not simultaneously retain other offices. (1-6-2) They cannot accept gifts or titles of nobility from foreign states. (1-9-8) Senators and representatives may be disciplined for disorderly behavior and expelled if two-thirds agree. (1-5-2)

Congress convenes on Jan. 3 and is in session at least once a year. (1-4-2) A majority constitutes a quorum. (1-5-1) While in session, neither body may adjourn for more than three days. (1-5-4) Members may not be questioned about their House or Senate speeches or debates. (6-1) They are privileged from arrest. (6-1) A journal records all proceedings and votes. (1-5-3) The Vice-President votes only to break a tie in the Senate. (1-3-4)

The President must be a natural-born citizen. (2-1-5) He must be at least 35. (2-1-5) Each state receives Electoral College electors equal to their number of representatives and Senators. (2-1-2) Elections are held on the same date in every state. (2-1-4) A majority of electors choses the President. (2-1-3) If no candidate receives a majority, the House elects the President. (2-1-3)

The Presidential oath of office, written into the Constitution by the Founders, makes no reference to god. (2-1-8) The President may not be subjected to a religious test. (6-3) The President is entitled to compensation. (2-1-7) He is elected to a four-year term that begins on Jan. 20 (2-1-1). He can serve no more than two terms. (A-22) If he already served more than two years of another’s term, he is limited to one term. (A-22)

The President defends the Constitution. (2-3) He is Commander-in-Chief of the army and navy. (2-2-1) He may use the militia to suppress insurrections and enforce the laws of the union. (1-8-15) He appoints ambassadors, officers, and Supreme Court Justices. (2-2-2) He fills vacancies, including Vice-President. (2-2-3) He may grant pardons. (2-2-1) He gives a State of the Union address, which recommends legislation. (2-3) He can make treaties. (2-2-2) No state may sign treaties. (1-10-1) The President may veto bills (1-7-2)

The President may be impeached for treason, bribery, or high crimes and misdemeanors. (2-4) The crime of treason must be supported by two witnesses or a confession in open court. (3-3-1) The House has the sole power to file impeachment charges. (1-2-5) The Senate has the exclusive power to try and convict cases of impeachment. (1-3-6) The Vice-President becomes President if the President dies or is removed from office. (2-1-6)

The House and Senate have legislative powers. (1-1-1) Congress has several enumerated powers. (1-8) They may also pass laws necessary for carrying out the delegated powers. (1-8-18). They may legislate for the District of Columbia. (1-8-17) They may make rules for U.S. territories. (4-3-2) They may admit new states. (4-3-1) They may initiate constitutional amendments by a vote of two-thirds in both bodies. (5) Presidential vetoes may be overridden by a two-thirds majority in both bodies. (1-7-2) The Senate may ratify or reject treaties. (2-2-2)

All revenue bills begin in the House. (1-7-1) Congress has the power to lay and collect taxes. (1-8-1) They may use income taxes. (A-16) Direct taxes must be proportional (1-2-3) Congress, but no state, may coin money. (1-8-5, 1-10-1) They may punish counterfeiters of U.S. coins and securities. (1-8-6) They may borrow money. (1-8-2) They may pay the debt. (1-8-1) They may write uniform bankruptcy rules. (1-8-4) Money from Treasury must be appropriated. (1-9-7)

Congress may regulate commerce with foreign nations and among the several states (1-8-3). They cannot tax exports (1-9-5) There shall be free trade within the U.S. from state to state, without preferences or tariffs imposed on ships (1-9-6) States cannot impose tariffs on imports from abroad or exports headed overseas. (1-10-2)

Congress may promote the progress of science and useful arts by protecting inventors and authors. (1-8-8) They may build post offices and postal roads. (1-8-7) They cannot prohibit intoxicating liquors. (A-21) They may provide for the general welfare. (1-8-1)

Congress provides for a common defense. (1-8-1) They may declare war. (1-8-11) They may raise and support armies for two-year periods. (1-8-12). They may create a navy. (1-8-13) They may organize the militia to repel invasions. (1-8-15, 1-8-16) Militia members cannot be denied a right to bear arms. (A-2) They may grant letters of marque and reprisal. (1-8-11) States may not. (1-10-1) Individual states may not maintain troops. (1-10-2) Congress may erect forts, arsenals, and docks, (1-8-17) but may not quarter soldiers in homes. (A-3)

The Congress may make rules for land and sea forces. (1-8-14) They may make rules for enemies captured on land and water. (1-8-11) They may punish offenses against the Law of Nations. (1-8-10) They may punish felonies on the high seas. (1-8-10)

The Constitution created a Supreme Court. (3-1-1) Tribunals inferior to it may be created by Congress. (1-8-9) Supreme Court Justices serve for good behavior. (3-1-1) They must be compensated.

The judicial power extends to cases where the issue involves the U.S. Constitution, federal law, a treaty, an ambassador, admiralty or maritime law, where the U.S. is a party, two states sue each other, or citizens of different states are involved. (3-2-1) Federal courts cannot hear cases between a state and citizens of another. (A-11) The Supreme Court has appellate jurisdiction, and only a limited degree of original jurisdiction. (3-2-2)

Each state is guaranteed a Republican form of government. (4-4) States cannot grant titles of nobility. (1-10-1) They cannot enter into confederations with other states (1-10-1) They cannot enter into agreements with foreign powers or other states. (1-10-3)

Federal law is the supreme law of the land. (6-2) States reserve only those powers not delegated to the federal government, or barred by the U.S. Constitution. (A-10) States may initiate amendments to the Constitution, if two-thirds of the state legislatures agree. (5) A constitutional amendment becomes law, if three-fourths of the states ratify it. (5)

States must grant full faith and credit to the laws and judgments of the other states. (4-1) They cannot impair the obligations of contracts. (1-10-1) If they take private property for a public purpose, they must pay just compensation. (A-14) In civil cases at law, jury trials cannot be denied. (A-7) States cannot deny citizens the privileges and immunities of citizens of the other states. (4-2)

States cannot deny liberty, which encompasses many freedoms. (A-14) Liberty includes a freedom from religion, as well as the free exercise of it. (A-1, A-14) The government cannot deny free speech, or a freedom of the press. (A-1, A-14) They cannot deny a right to assemble to petition for a redress of grievances. (A-1, A-14)

The Founders made possible the abolition of the slave trade by inserting a provision that allowed it to be terminated in 1808, which is exactly what Jefferson did as soon as he could. (1-9-1) Slavery itself was ended by Lincoln’s efforts in 1865. (A-13) Persons cannot be denied the equal protection of the laws. (A-14) The enumeration of certain rights in the Constitution, does not mean others retained by the people are denied. (A-9)

Neither Congress nor any state may single out a person and convict them through a Bill of Attainder (1-9-3, 1-10-1) Neither Congress, nor any state, may change the rules of the game after the fact by passing Ex Post Facto laws. (1-9-3, 1-10-1)

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 warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized. (A-4) One state may ask another to extradite an alleged fleeing felon. (4-2-2)

A person accused of a crime may not be denied liberty without the due process of law. (A-5, A-14) He is entitled to the assistance of counsel. (A-6) Writs of Habeas Corpus, which bring the accused out of a jail and before a judge, cannot be suspended, except in times of rebellion (1-9-2) While awaiting trial, the accused may not subjected to excessive bail. (A-8)

One accused of a felony must be indicted by a grand jury, or a judge must find probable cause to bind him over for trial. (A-5) He must be provided with the information that sets forth the nature of the accusation. (A-6) He is entitled to a speedy trial (A-6) He is entitled to a trial by jury. (3-2-3) The jury must be impartial. (A-6)

The trial must be held in the state where the alleged offense occurred. (3-2-3) The trial cannot be conducted in secret and must be open to the public. (A-6) The defendant cannot be compelled to be a witness against himself; in other words, he has a right to remain silent. (A-5) He has the right to confront witness against him. (A-6) He has the right to use the compulsory subpoena process to obtain witnesses for his defense. (A-6)

If a jury finds the defendant not guilty, he cannot be subjected to same offense twice (A-5) If the defendant is found guilty, he cannot be subjected to excessive fines, or exposed to cruel and unusual punishment. (A8)

05/11/2013

Immigration: 200 Years of Law

Although immigration is once again being debated, it’s an issue that’s been discussed on and off since the founding of our nation. Before Congress and the President pass another bill, perhaps it’s time to review the federal laws previously enacted.

Let’s start with the U.S. Constitution. The score here is one right and one wrong. The Founders got it right when they delegated to Congress the power over Naturalization and Citizenship and thereby federalized the issue (Art I, Sec. 8). It would have been a mistake if they had allowed each state to write their own laws.

The Founders, however, got the idea of Citizenship wrong when they counted only 3/5ths of slaves and initially limited immigration to only free white persons (1790).

Congress got it right as they required immigrants to first reside in the U.S. for five years before they could become citizens (1795). They got it wrong by extending residency to fourteen years (1798), but then corrected the error, by returning to five (1802).

Congress got it right in the mid-1800s, when they ignored the Know Nothing Party and their Protestant members, who wanted Irish immigrants excluded, simply because they were Catholic.

America got it right after the Civil War when the 14th Amendment made all persons born or naturalized here, Citizens of the U.S. and of the state where they resided. Citizenship by birth, regardless of the nationality of their parents, was the right thing to do.

Congress got it wrong as they passed laws that excluded Chinese and other Asians based on nothing more than race (1875-92)

Congress got it right when they made some knowledge of the English language a condition of citizenship (1906). There is nothing wrong with requiring English reading tests (1917). Some civics is also not too much to ask from someone who wants to become a U.S. Citizen.

Congress got it wrong after WWI when they limited entry of newcomers to small numbers, by establishing quotas based on the nationalities of those already in the U.S. (1921-24). Ironically, the exclusion of foreigners, willing to work for low wages, helped organized labor in the U.S., by giving American citizens more job opportunities and greater bargaining power during the roaring 20s.

America got it right after WWII, when millions of homeless and orphaned displaced persons were taken in from war-torn Europe.

Congress got it wrong in the McCarthy Era (1950s) as suspected subversives were deported, and blacklisted people, like future Canadian Prime Minister Pierre Trudeau, were kept out.

Congress got it right in 1965 when they abolished the nationality quotas established in 1924, and started focusing instead on immigrant work skills, regardless of country of origin.

Congress got it right in 1986, as they imposed sanctions against employers who hired illegal immigrants. But they got it wrong by giving amnesty to three million illegal-aliens, as this had the unintended effect of encouraging even more to enter unlawfully.

Congress got it right in 1990 when they increased the annual number of legal immigrants from 500,000 to 700,000.

Congress got it right in 1996 when welfare and immigration reform made immigrants here illegally ineligible for most forms of federal assistance, including many types of Social Security.

We’ve learned from history the federal government, and not the states, have exclusive jurisdiction over immigration policies. These laws should not reject people on the basis of race or religion. Immigration policies must properly require newcomers to learn civics and to read and write English. People with useful skills should be allowed to enter the work force, as the U.S. needs a steady flow to insure a gradual rise in population. Caps on the annual flow are needed, however, so unemployed American citizens are able to find jobs, and not be displaced by excessive foreign labor, willing to work for less. Employer sanctions must be enforced, so everyone pays into the Social Security System. The underground economy must be destroyed to end cash payments under the table, so everyone contributes income taxes.

04/23/2013

Boston Bomber To Use Civilian Court

Since the Boston Marathon Bombings, some have advocated processing the surviving defendant in a Military Tribunal, but since he is a U.S. Citizen, and a civilian, he will be indicted and tried in the ordinary American criminal court system.

Whether someone is to be tried as a civilian, or as a combatant, depends on the circumstances. The following is a review of the various categories.

Civilian U.S. Citizens, who are not combatants, alleged to have committed a crime in the United States, are given access to the civilian courts, with all the rights of the accused, provided in routine jury trials. If they are found “guilty,” they can be sentenced to prison or to death if the offense and the jurisdiction allows it, but if the verdict is “not guilty,” they must be released. An example in this category is the domestic terrorist, Timothy McVeigh, the Oklahoma City bomber, who was convicted in our civilian court system, sentenced to death, and executed.

Combatant U.S. Citizens, enlisted in the U.S. military, and charged with an offense, would be entitled to Courts-Martial proceedings, under the Uniform Code of Military Justice, again with all the due process rights and privileges provided by our Constitution. An example would be U.S. Lt. William Calley, who was charged with massacring hundreds of defenseless Vietnamese women and children, and convicted by U.S. combat officers, who served as a jury of his peers.

Enemy Alien Combatants, captured in the field, who may have killed our soldiers, but who did not violate any of the Laws of War, would be entitled to Prisoners-of-War status, and can held for the duration of the conflict, provided they are granted prisoner rights, under the Geneva Conventions. For example, thousands of ordinary German soldiers, taken prisoner by the U.S. in WWII, were entitled to this status, as they were held and later released to go home.

Unlawful Enemy Alien Combatants, captured in the field, would initially be treated as prisoners-of-war, but if evidence surfaced they had committed illegal acts in violation of the Laws of War, they could be subjected to a trial by a Military Commission to answer for their illegal acts. For example, many Japanese commanders in WWII, who had executed defenseless civilians in the Philippines and elsewhere, were tried in Military Commissions, convicted, and executed.

The Boston Marathon Bomber is not a member of the armed forces of another nation. He was not for example an Afghan Taliban captured in the field or a member of the Iraqi Army. He has no status as a enemy combatant, and cannot be tried in a Military Commission. Moreover, he is not an alien, but rather a naturalized American citizen. His status as an American guarantees him all of the Constitutional rights allowed under our civilian judicial system.

01/14/2013

Need “Borrowing” Not “Debt” Ceiling

The “Debt Ceiling” is once again being debated in Congress, but it shouldn’t be, since we have no choice, but to pay the financial obligations we already have. Defaulting on our loans is not a realistic or responsible option as it would do nothing but lower our credit rating and trigger negative global responses.

The debate should instead occur much earlier whenever Congress borrows money.  If we are going to have a “ceiling,” it should be as to the amount we borrow. Whenever right-wing politicians vote for another war, or a new weapons system, without raising taxes to pay for them, they should first be required to raise a “Borrowing Ceiling.” This is where the issue might make a difference, since borrowing is not a necessity.

Under the U.S. Constitution, the power “to borrow money” is specifically delegated to the Congress (Art. I, Sec. 8). Congress must approve of any measure that causes borrowing. It is not a power assigned to the Executive. The President does not write the budget. The House must stop blaming the President for spending and they must face their constitutional duty to control it.

Right-wing politicians, who control the House, where all budget bills originate, are famous for supporting all sorts of wasteful military spending, without raising taxes, but once they authorize spending, it’s a waste of time to debate the issue of paying for the military toys previously purchased with a credit card.

It’s time for the Republican House to act like adults, take responsibility, and significantly cut the Defense Budget, or raise taxes to pay for the military spending they previously supported.

12/22/2012

NRA: Gun Caused Newton Shooting

It’s only been a little more than a week since the horrible grade school massacre in Newton, Connecticut, where twenty 6-year-olds and six teachers were murdered, but the National Rifle Association (NRA) is already confusing people as to its cause.

Yesterday, in a speech by Wayne LaPierre, the head of the NRA, the true cause of the shooting was not mentioned. Instead, he suggested increasing our tax burden by spending countless sums to place armed guards in every school in the U.S. He failed to mention mass killings have occurred in theatres, shopping centers, and even army bases, already protected by armed guards.

The NRA cannot see the forest for the trees. The simple cause of the shooting in Connecticut was a gun, period. Yes, the shooter had a mental issue. People have had mental problems in the past, and no matter what we do as a culture, there will be sick people in the future. All we can do is treat illnesses once diagnosed.

The critical mistake in Connecticut occurred when the mother of the mentally ill kid purchased not one, but three firearms, and then kept them in her home, where her son could access them. Although people have been warned over the years the presence of firearms increases risks of injury or death to the owner, more than anyone else, the mother ignored this, and tragically she died first.

The mentally ill kid then took his mother’s semi-automatic weapon on a shooting spree at a grade school. If the mother had not given him access to the gun, or if we would have barred her from purchasing it, the shooting probably wouldn’t have occurred.

We first have to acknowledge that twenty innocent 6-year-olds were murdered by a gun. Sadly, the NRA just can’t accept this.

Other countries, including Canada where hunting is popular, have far less violence from guns, because their regulations are more effective. The 2nd Amendment is not absolute. It specifically refers to a “well-regulated militia.” As the Founders wrote it, they envisioned regulations. It’s time we implemented gun regulations by banning powerful semi-automatic guns now and forever.

12/17/2012

2nd Amendment Allows Regulation

Although the Supreme Court’s conservative five-member activist majority of Scalia, Thomas, Alito, Roberts, and Kennedy ignored the “original intent” of the Second Amendment, as they drafted law from the bench in 2008, and gave individuals who had not enlisted in any state militia an individual right to bear arms, the Constitutional interpretation enunciated by dissenting justices Stevens, Souter, Breyer and Ginsburg, who said only state militia members have a right to bear arms, was the correct view.

In the American Revolution, a loosely-affiliated group of colonial states, operating under the Articles of Confederation (1777-87), provided arms to those serving in well-regulated militias. Art VI of the Articles stated in part: “…Every state shall always keep up a well-regulated and disciplined militia, sufficiently armed…and shall provide…a proper quantity of arms…”

When the Founders realized the Articles were too weak, and the nation needed a stronger central government, they adopted the U.S. Constitution, which created a federal system, and delegated to Congress the power to raise an Army. The new arrangement concerned some, as they feared a rouge President might use the Army for his own personal purposes, to overthrow their liberties.

The Second Amendment was adopted to preserve the rights of the states to maintain armed militias, so they could collectively resist a federal Army. This is why it provides: “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.”

The “original intent” of the 2nd Amendment was to prevent the federal government from disarming state militias. In modern terms, the U.S. government in Washington cannot take guns away from those in state militias, such as the Wisconsin National Guard. If you belong to the Guard, you have a right to bear arms; if not, you have no right to them.

Subsequent Acts of Congress, such as the Militia Act of 1792, which ordered every 18 to 45 year old man to be “enrolled in the militia” and to “provide himself with a good musket or firelock…or with a good rifle” showed the Founders were connecting the right to bear arms with enlistment in a militia.

State Supreme Courts also found only those in the state militias had a right to bear arms. In Andrews v State, 50 Tenn. 165 (1871), a Tennessee Court held the right to bear arms for common defense did not mean individual defense, but referred to the right to bear arms for the defense of the community.  In English v State, 35 Tex. 473 (1872), the Texas Court held the “arms” referred to in the Second Amendment are those of soldiers. In Dabbs v State, 39 Ark. 353 (1882), the Arkansas Court held a statute making it an offense to sell “any pistol,” except those “used in the Army or Navy of the U.S.” did not invade the constitutional right to keep and bear arms. In Pierce v State, 276 P. 393 (Ok App 1929), an Oklahoma Court held “arms” in the 2nd Amendment did not include pistols, but only weapons carried by the militia.

A few years ago, however, the conservative U.S. Supreme Court ignored the language of the 2nd Amendment, as well as case precedent, as they created an individual right to bear arms. See District of Columbia v Heller (2008). Heller was later applied to state and local governments, in another 5-4 case. See McDonald v Chicago (2010). (Sotomayer replaced Souter’s dissent).

The only saving grace in Heller was the part where the Court upheld the constitutionality of firearm regulations, and reaffirmed the right of states to engage in gun licensing. They said Second Amendment rights are not unlimited, as there is no right to carry any weapon, in any manner, for any purpose.

Gun regulations have been used for over 100 years. 126 years ago already, the U.S. Supreme Court upheld an Illinois Military Code that prohibited all bodies of men, except U.S. troops, and those in regular organized state militias, from drilling or parading with arms, unless they were licensed. See Presser v Illinois (1886). 115 years ago, in Robertson v Baldwin (1897), the Court held the right to bear arms was not absolute, and states had the authority to regulate concealed-carry. 73 years ago, the Court held the 2nd Amendment does not protect citizens who transport 12-gauge shotguns, because they are not reasonably-related to the preservation of a well-regulated militia. See U.S. v Miller (1939).

Today, while the need of urban governments to reduce crime by imposing complete handgun bans has been blocked, they can still keep felons and juveniles from possessing firearms; they can ban certain types of firearms, like machine guns and sawed-off shotguns; they can prohibit concealed carry; and they can ban guns on public property.

While gun control advocates are unable to ban and can only regulate, 10 to 20 thousand Americans die each year as a result of handguns. Most murders (63%) are caused by handguns, and 70% of the time the person shooting is a friend or relative of the victim. Foreign countries, such as Japan, Canada, and those in Europe, have only a small fraction of homicides caused by handguns.

Gun control is needed in central cities (where there is no hunting), and any regulation that makes access to handguns in urban areas more difficult, is a step in the right direction. Since the Supreme Court decided to write law, and outlawed handgun bans as an option, the only alternative is to now regulate gun use to death, with the hope that someday, a different Supreme Court will finally apply the original intent of the Second Amendment.

11/04/2012

Undecided Voters: Social Issues

The better choice on each issue is in the left column, indicated by a (D) for Democrat, (R) for Republican, or (N) for neither.

(D) VOTING RIGHTS AND ELECTIONS: Which party is more likely to promote a constitution amendment to remove money from campaigns, or appoint Supreme Court justices willing to interpret large contributions as bribery? Romney goes in the wrong direction as he suggests getting rid of campaign finance laws. (1-16-12). Who is more likely to promote and protect the right to vote by removing unnecessary obstacles, and yet preserve the integrity of the system? Democrats clearly win this one.

(D) MEDICARE: Although the nation must get Medicare spending under control, Romney has no solution, for he would block grant it to the states, which would effectively kill it. (10-18-11) (11-12-11) (2-22-12). Not changing things for current retirees is just a way of screwing those who’ll retire later (1-8-12) Romney wants a premium voucher program, which inevitably will not cover increases in insurance company premiums (1-16-12).

(D) MEDICAID: Romney would also effectively end Medicaid by sending it to the states. (1-16-12). As he put it, he would get the government out of Medicaid. (1-19-12). The problem is a large segment of the population will prematurely die off.

(D) HEALTH CARE COSTS: Health care needs tough federal regulation to control doctor and hospital costs, as well as drug prices, but neither party openly proposes a solution. Since regulation is the only answer, and the modern Republican Party never advocates price controls, Romney cannot be the solution.

(D) OBAMACARE: Romney was wrong when he thought Obamacare would be declared unconstitutional. (12-10-11). He repeatedly promised to repeal it. (10-11-11) (10-18-11) (1-7-12) (1-16-12) (1-19-12) (2-22-12). He posed a good question when he asked what we would be replaced with. (10-11-11). He alleged Obamacare raises taxes 500 billion, cuts Medicare 500 billion, and is a government takeover. (10-11-11). He thinks eliminating it would save 95 billion annually (11-12-11) (1-7-12). Romney would give states health care waivers (9-22-11), which effectively would repeal it. Since the current health care system is dysfunctional, the greatest problem with the Republican position is their failure to suggest a rational intelligent alternative.

(D) INDIVIDUAL MANDATE: Romney argued people need to purchase health insurance to show their personal responsibility. (8-11-11) (11-9-11). He said uninsured persons are going to emergency rooms and taxpayers end up picking up the tab. (9-7-11). Romney insulted those who cannot afford health insurance by calling them “free riders.” (1-26-12). He later contradicted himself saying he opposed the individual mandate (1-23-12). The problem is even with a government voucher program, health care providers and health insurance companies will continue raising costs and premiums, and most will be priced out of coverage. Deductibles and co-pays will continue to rise. Prices need to be controlled and regulated. Since Republicans will never regulate, the vote has got to go to the Democrats.

(D) PRESCRIPTION DRUGS: Romney said he would not repeal the unfunded Prescription Drug Program started by Little Bush (9-12-11). The problem is we need drug price regulation, but the Republicans will never do it. Our only hope is with Democrats.

(D) SOCIAL SECURITY RETIREMENT: Social Security retirement should never be confused with Medicare, or other social welfare programs. The retirement plan, created in 1935, is the most successful and efficient program ever created by the federal government. It needs nothing, except to be left alone. While Romney called it an “essential program” (9-12-11), Republicans from Reagan to Little Bush have advocated phasing it out. So, even though Romney said we should save the retirement plan (9-7-11), he would be pressured by House Republicans to push a right-wing agenda, which is to privatize it. Although Romney said it would not change for current retirees (1-8-12), he would add a year or two to the retirement age (1-16-12).

(D) WELFARE: Romney would turn poverty programs back to the states (1-8-12), which would kill them. He thinks Obama is creating a welfare state (1-19-12), and the U.S. has become an entitlement society. (1-16-12). Romney would block grant Food Stamps (2-22-12), which would cripple the needs of the hungry.

(D) EDUCATION: Romney apparently thinks there is something wrong with teacher unions, as he said he would stand up them. (9-22-11) While he would test children in math and English (2-22-12), which is fine, too many Republicans push the idea of privatizing schools, a long range threat to our culture.

(D) EDUCATIONAL TV/PUBLIC BROADCASTING (PBS): In an shocking campaign promise, Romney said he would eliminate Public Broadcasting (11-12-11). At a time when more, not less, non-fictional programming on science is needed, why cut PBS? Personally, it’s the only benefit I ever received from the federal government. I can’t believe any candidate would eliminate it.

(D) ENVIRONMENTAL PROTECTION: In Presidential elections, we don’t just elect a man; we choose a party to manage the agencies of government. If Romney wins, House Republicans will name the head of the Environmental Protection Agency (EPA). Extremists like Republican Michelle Bachmann, who advocated abolishing it, will have influence. If Romney wins, we will have a weak EPA. We should prefer over-regulation, than the other way around. Although Romney said we can’t let pollution flow from one state to another (1-8-12), which implies a need for federal law, modern Republicans cannot be trusted to regulate.

(D) FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) The storm that just hit the East Coast is a good reminder of how bad it would be if FEMA had been abolished, or privatized. We need to remember we all sink or swim together.

(D) SUPREME COURT: It is likely the next President will appoint one or more Justices. A Romney win would tip the court to the hard right. The Court currently has four right-wing Justices: Scalia, Thomas, Alito and Roberts (on most issues). Reagan’s appointee Kennedy completes the usual conservative majority, which has existed since 1972.

(D) ABORTION: The secular right to “liberty” found in the 5th and 14th Amendments allows women to have an abortion in the earlier stages of pregnancy, when the fetus is incapable of living outside the womb. As a practical matter, attempts to outlaw abortion have been a waste of time. Even if the anti-abortion crowd had another Justice, who would ignore precedent, and reverse Roe v Wade, subsequent attempts to convict women and doctors would fail. Prosecutors will never get 12 jurors to convict women or doctors, and there would be hung jury after hung jury. We live in a free country which has no official religious creed. People disagree as to whether life begins at birth, or some other point before the fetus can live outside the womb. Romney, a missionary for the very conservative Mormon Church, will almost certainly appoint right-wing Justices. He changed his position on abortion. Most recently, he said he is pro-life (12-15-11) (1-19-12). He said Roe v Wade was wrong, it should be overturned, and the issue should be left to the states. (1-7-12). His stand would only give religious fanatics the power to impose their religious views on a secular society, filled with many who want to be free.

(D) CONTRACEPTIVES: Romney did not think any state wanted to ban contraceptives (1-7-12), but he is part of a right-wing Republican Party willing to turn back the hands of time.

(D) GAYS: Romney, whose Mormon grandfather fled the U.S. and moved to Mexico, because he believed strongly in the right to have more than one wife, ironically wants to amend the Constitution to limit marriages to one man and one women. Why the Republicans want to control the life of gays, who are genetically predisposed, is a mystery. We live in free country. It’s time to leave gays alone. Although Romney opposes same-sex marriage (12-15-11) (1-8-12) (1-16-12), and would amend the constitution to stop gay marriage (1-7-12) (1-8-12), the Democrats have the better position, as they believe in personal freedom.

(D) GUNS: Neither party is doing much to control hand guns in cities. Romney signed an assault weapons ban when he was Gov. in Massachusetts, but now he says he is pro-gun (12-15-11). The Republicans offer little hope to control firearm violence.

(D) RELIGION: Romney served overseas in France as a missionary for the Mormon Church. (12-10-11). He said he would seek guidance and providence in making critical decisions (1-26-12). He thinks Obama is somehow attacking religious freedom. (2-22-12). I have no idea what Romney is talking about.

06/04/2012

Regulating Commerce: What Can We Do?

The Supreme Court will soon be deciding if all or part of the 2010 federal health care act went too far under the Congressional power to regulate interstate commerce. The question is to what extent does the “commerce clause” give Congress the power to regulate?

Art. I, Sec 8 (3) of the Constitution provides: “Congress shall have power…to regulate commerce…among the several states.” The first significant “commerce clause” case involved a challenge to a state law in Gibbons v Ogden (1824), where Chief Justice Marshall held Congress has the power to regulate every aspect of commercial intercourse, including every transaction not wholly carried out within the boundaries of a single state.

During the nation’s first 100 years, despite a federal power to regulate commerce, Congress passed no significant law in that regard, and instead most legislation was at the state level. Congress first used the “commerce clause” in 1887 to create the Interstate Commerce Commission (ICC) to regulate the railroads. Three years later, they added the Sherman Antitrust Act (1890).

An activist conservative Supreme Court however went right to work limiting any federal expansion of the power to regulate commerce. They held in 1895, while Congress could control railroads and common carriers, manufacturing conducted wholly within the confines of a single state, was outside their reach. In Hammer v Dagenhart (1918), Congress tried to eliminate child labor by establishing a minimum work age, but a conservative Court held the act exceeded their constitutional powers, because manufacturing was outside the reach of the “commerce clause.”

The interpretation of the “commerce clause” changed significantly during the Great Depression, when a new Court held in NLRB v Jones & Laughlin Steel 301 U.S. (1937), Congress could regulate manufacturing, even if it is based within one state. The Court abandoned the old distinction that kept manufacturing beyond the reach of federal regulation. The new test was any activity “affecting” interstate commerce could be subjected to regulation. In a challenge to the 1938 Fair Labor Standards Act, which regulated wages and hours, a progressive court in U.S. v Darby (1941), finally overruled the old 1918 Hammer decision above.

In Wickard v Filburn 317 U.S. (1942), the Court upheld the power of the federal government to regulate local farmers, who never did any business outside their state, on the grounds their production nevertheless affected aggregate national supplies and prices. In Heart of Atlanta Motel v U.S. 379 U.S. (1964), a local motel in Georgia that discriminated against blacks was subjected to the federal Civil Rights Act of 1964, because they accepted guests from out-of-state, and therefore engaged in interstate commerce.

The question now is whether the Supreme Court will limit the national power to regulate health care providers, businesses that provide health insurance to workers, as well as the powerful health insurance industry. Will they exclude the “individual mandate” from the reach of the commerce clause? The answer is there are five conservative votes on a 9-member Supreme Court, and though we have no crystal ball, at least 4 or 5 of them will vote to overturn at least part of the new law.