Tag Archives: government

Too Many Laws

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Here’s an example of the over-complexity that results from too many laws on our books, and of the injustice that is inflicted as a result of that over-complexity.  Jacob Gershman, writing in The Wall Street Journal‘s Law Blog describes an instance of rape that isn’t rape.

Here are two cases.  In one, a man has sexual intercourse with a woman by tricking her into believing he was, in fact, her boyfriend.  In another, a man has sexual intercourse with a woman by tricking her into believing he was, in fact, her husband.

A lower court convicted the man in the first case of rape, and an appellate court reversed—no rape had occurred.  Here’s the law on that, as described by that appellate court:

…a victim of a crime is deemed “unconscious” when he or she is “not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.

But pretending to be someone else is a fraud of “inducement” not “fact.” That means that the jury couldn’t convict [the…man] on that basis[.]

A married woman, similarly tricked (differing only by the…man…pretending to be husband rather than boyfriend), would get the rape conviction, as the appellate court also pointed out in its ruling in the first case.

…California’s penal code “provides that rape includes an act of sexual intercourse ‘[w]here a person submits under the belief that the person committing the act is the victim’s spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.'”

California’s Attorney General Kamala Harris is on the case, though.

The evidence is clear that this case involved a nonconsensual assault that fits within the general understanding of what constitutes rape.  This law is arcane, and I will work with the Legislature to fix it.

Look for yet another law on the books, rather than a merging of these two laws into a single one with a unified definition of rape.

Now that the Bill Has Been Passed

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…and we can see what is in it, the pork for President Barack Obama’s paymasters that is in it is quite impressive.  Here are some, in no particular order.  Enjoy the sausage.

  • Accelerated tax write-off for owners of NASCAR tracks: $78 million
  • Tax credit for companies operating in American Samoa: $62 million
  • Distillers rum tax rebate: $222 million
  • Film and television producers expense the first $15 million of production costs incurred in the US ($20 million incurred in economically depressed areas in the United States): $430 million
  • Wind production tax credit: $12 billion
  • Cellulosic biofuels tax credit continued and expanded to include producers of “algae-based fuel:” $59 million
  • Biodiesel and “renewable diesel” tax credit: $2.2 billion
  • Plug-in motorcycles tax credit: $7 million
  • Energy-efficient appliances tax credit: $650 million
  • Energy-efficient homes tax credit: $154 million

Most of these seem like chump change, but they, with other inclusions, sum to $40 billion of pork in the tax “deal.”

Harry Reid’s Filibuster

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I wrote here about Senate Majority Leader Harry Reid’s (D, NV) move to eliminate the filibuster so his Progressives could run riot in the Senate, or Conservatives in their turn, eliminating any and all rights of the minority.

This, of course, would reduce a once proud institution to a shabby Parliament.

Now, though, Politico reports that Reid will delay his move until the middle of the month, since he doesn’t appear to have the Democratic votes needed to violate the Senate’s Rules.  This is indicated by the existence of a bipartisan coalition of Senators—four each Democrats and Republicans—who demur from his assault.  It’s those four Democrats objecting that are giving him pause.

However, Reid is attempting to effect this delay by technically

keep[ing] the Senate in its first legislative day by sending the chamber into recess—rather than adjourning.  That move would keep the Senate in session, preserving his option of pushing forward with the so-called nuclear option at a later date.

He’s filibustering the protect-the-filibuster move.

Do Away with our Constitution

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That’s what Louis Michael Seidman, writing in the New York Times last week, wants to do.  He claims to have been teaching Constitutional law for quite a long time, but that’s hard to believe, after reading his epistle (though, in fact it’s true–at Georgetown, where he teaches Constitutional law, but from this writing, it seems to me he teaches very little of the Constitution).  On the other hand, another great Constitutional scholar, Ezra Klein, agrees with him.

Here are some of Seidman’s…rationales.

Imagine that after careful study a government official—say, the president or one of the party leaders in Congress—reaches a considered judgment that a particular course of action is best for the country.  Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action.  Is it even remotely rational that the official should change his or her mind because of this divination?

Well, since that disagreement actually was centered on what the Constitution, the supreme Law of the Land, allows, yeah, he would have to give up his divination.  Especially since the Constitution was designed to maximize the likelihood that he represents American citizens, his collective bosses, and to ensure that their view of what is best for the country outweighs his own.  Suppose, contra, that after a careful study a government official—say, the president or one of the party leaders in Congress—reaches a considered judgment that a particular course of action is best for him personally.  Should that judgment be allowed to stand?

Constitutional disobedience may seem radical, but it is as old as the Republic.  In fact, the Constitution itself was born of constitutional disobedience.  When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states.  Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

And how terrible that was.  Instead of being approved by the conclave of diplomats that was all that the Congress was under the Articles, or by unanimous approval of 13 disparate and independent States’ legislatures, it was approved by something far closer to the people themselves—those conventions, which were selected by an especially broad franchise of voters and one far more broad than the franchise that was allowed to select Seidman’s precious legislators.  It was the Sovereign people who ratified the new Constitution, thereby explicitly validating the decisions of those constitutional disobeyers.  Moreover, the remaining four States were not bound by a Constitution which their citizens did not ratify; they were free to go their own way, as the State of Rhode Island and Providence Plantations did for quite a few years before seeing the political and economic advantages of joining the union.  That separate way also included the option of continuing under the Articles, with a Congress now consisting of diplomatsdelegates from those four States, and a new effort at amendment.  In the end, though, the citizens of all thirteen States individually and separately ratified the Constitution, adding to the validation.

No sooner was the Constitution in place than our leaders began ignoring it.  John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech.  Thomas Jefferson thought every constitution should expire after a single generation.  He believed the most consequential act of his presidency—the purchase of the Louisiana Territory—exceeded his constitutional powers.

And all of these men’s relevant actions or failures to act were overridden by the existence of that Constitution—which also acts as a brake against Seidman’s “considered judgment” government official.  Moreover, that these men had feet of clay (including his slave owners) is an argument for holding government men fettered by a Constitution, not for allowing them freedom to run riot.  As one of those disdained “white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves” but who could foresee the future of a society governed by men, noted,

If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.  In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Thus, that document that some find confusing because it was written more than one hundred years ago.  And which has stood us in good stead since was ratified.

Returning to Seidman’s words:

Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored.

Neither that they were abolitionists or that they “conceded” anything did not make them right.  In the event, slavery should have died out (literally) by 1808, but the slave States reneged on that bargain.  In the end, the Constitution was Amended, after that Civil War, to explicitly abolish slavery.  The argument simply to ignore the law was found as wanting then as it is now.

The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution…should give us pause.  The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled.  Some decisions have been grounded in one school of thought, and some in the other.  Whichever your philosophy, many of the results—by definition—must be wrong.

Nor need the two schools be reconciled.  Judicial activism is wrong.  Judges’ oaths of office commit them, on their honor, to uphold the Constitution, not to amend it ab ecclesia de banco.  Moreover, the Constitution is a living document, as Seidman and his “living constitutionalists” aver; however, it is that same Constitution’s Article V which shows how it thrives and evolves.  As one of Seidman’s living constitutionalists, Justice Robert H Jackson, said, the Constitution (Jackson actually was referring to the Bill of Rights) is not a suicide pact.  Jackson was right; however, what is suicide is deviating from the Constitution—including altering it without the requirements of Article V.

I could go on, but that’ll do for now.  The rest of his diatribe is of a piece.

In the end, our Constitution is all that stands between us as a nation of laws and us as a nation governed by a few men who make the laws; it is all that stands between us as a nation whose government protects those individual rights, liberties, and duties that are part of our Creator’s endowment and us as a nation whose government presumes to grant (or withdraw) our rights, liberties, and duties.

If Seidman is dissatisfied with our Constitution, I’d like to see the text of his proposed Amendment(s).  Article V, after all, as he well knows, is how our Constitution lives.  That our Constitution causes so much frustration by getting so far in the way of facile “solutions” is one of its strengths.  In the end, if he can’t convince mere men of the greatness of his ideas, perhaps his ideas aren’t so great.

Oh, one more thing.  Seidman opens his piece with this:

[A]lmost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

But nowhere in the rest of writing does he name any of those “evil provisions,” or even any of the “archaic, idiosyncratic” ones.  That’s the integrity of leveling a charge and then declining to support it.

Obama’s Freedom

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From a person calling herself Jezebel comes this:

Ugh, you rubber cement-huffing nincompoop….

Anyway, I’m all for Hobby Lobby (and all other organizations that think birth control is totes gross) ignoring the law.  If they keep this up for long enough, we won’t have to worry about the fiscal cliff.

And I suppose that now’s as good a time as any to confess publicly that “Hobby Lobby” is the nickname I’ve given my vagina.

Name calling as pseudo-logic.  How very Progressive of her.

And this pseudo-argument from Think Progress, in their post misleading titled “Hobby Lobby To Deny Contraception To Employees, Ignoring Court Order:”

This ignores two obvious points—first, that Plan B is not an ‘abortion-inducing’ drug, as Hobby Lobby claims, and second, that the company may well end up paying more to avoid covering contraception than they would simply providing access.  It also takes a twisted view on the ‘Freedom of Religion’ argument; the company is actually forcing its owner’s religious beliefs on all employees, no matter their personal religious views.

I’ll ignore their first point as irrelevant (Look! Shiny!) and proceed to their second, which is blatantly cynical.  Think Progress actually is arguing in all seriousness that religious freedom—any freedom—is solely a pecuniary, fiscal thing, having nothing to do with principle or morality.  How little the Left understands individual liberties and duties.  How little the Left understands the threat to their own freedoms Big Government represents.

But their argument begins and ends with a disingenuously false premise.  Of course, the owners of Hobby Lobby are not at all denying contraception to their employees, nor are they imposing their own religious beliefs on anyone.  Those employees remain free to obtain birth control on their own, to obtain contraceptive “coverage” from other insurers, to engage in any other activity, all in accordance with their own religious beliefs.

Moreover, this refusal to participate in the HHS intrusion inflicts no other harm on their employees, either, including the costs of contraception now to be borne by those employees.  Sandra Fluke’s foolish remarks notwithstanding, contraception is freely available, and nearly free, for instance for $7/mo at any Walmart.  Condoms (the forgotten contraceptive) are just as cheap.

Hobby Lobby’s owners are simply exercising their 1st Amendment rights (that conveniently ignored clause that says, “Congress shall make no law…prohibiting the free exercise [of religion].”)  They’re simply declining to participate in a market for materials their religious beliefs hold to be immoral, while not at all impacting the ability of anyone else to participate in exactly that market.

But there’s another problem here.  When Supreme Court Justice Sonya Sotomayor refused a request from Hobby Lobby for a temporary injunction staying enforcement of HHS’ contraception insurance rule pending adjudication of the primary case, she continued the injustice rather than mitigated it.  In the balance was whether Hobby Lobby’s owners should be forced to suffer enormous economic damage or to violate their religious teachings, and so to suffer enormous moral damage, against whether Hobby Lobby’s employees should be required to go elsewhere for extremely low cost contraception and emergency contraception.  And this balance would have been purely temporary: resolution through the courts is in progress.

Sotomayor’s reasoning is instructive.

While the applicants allege they will face irreparable harm if they are forced to choose between complying with the contraception-coverage requirement and paying significant fines, they cannot show that an injunction is necessary or appropriate to aid our jurisdiction[.]

No.  $1.3 million in daily fines aren’t at all “irreparable harm.”  The moral damage of violating religious principles isn’t harmful at all.  After all, holding at bay that irreparable harm isn’t at all necessary or appropriate to aid the Court’s jurisdiction.  Never mind that it is the purpose of the Court to decide cases in accordance with the law—here the Constitution—and so to minimize overall damage.

And

Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts.

But pay, in the meantime, the frightful fiscal or moral cost that Sotomayor so casually dismisses.

Instead, Justice Sotomayor’s ruling said, “Kneel and bend your neck, sucker.  We already know the right answer.”  She carefully chose not to take the low cost—morally, fiscally, or legally—path.

But that’s freedom, Progressive style—Obama style.  Do it our way; we’ll take care of you.  But if you’re really so stupid as to disagree with us, we’ll vilify, demonize, you.  Because, in the first place, logic has no place in the discussion, and in the second place (yes, as in secondarily), your freedom is ours to determine.

Update: A Federal district judge appears to have a better understanding of relative costs and legal efficiency than does our Supreme Court Justice:

US District Judge Lawrence Zatkoff ruled Sunday in favor of Tom Monaghan and his Domino’s Farms Corp., near Ann Arbor.  Monaghan, a devout Roman Catholic, says contraception isn’t health care but a “gravely immoral” practice.

Zatkoff granted Monaghan’s emergency motion for a temporary restraining order until a final decision is made in the case.