Being Libertarian

Earlier in my life, I knew my late grandfather was a libertarian. Back then, before I got my head on straight, I thought that libertarianism was on par with anarchism — completely anti-government, not just wanting the government to leave you alone.

Now I’m sure we’ve all taken those political alignment quizzes that try to determine if you are conservative or liberal. Every time I took one, no matter where I took one, I always came out dead-center, sometimes slightly liberal or slightly left of center. Never did I come out slightly right of center or slightly conservative.

It really wasn’t until last year or two years ago that I discovered the real meaning of libertarianism. And in discovering actual libertarianism, I’ve also discovered that I’ve pretty much always been libertarian and just didn’t know it.

Thomas Jefferson can probably be called the original libertarian, though he would easily compete with Thomas Paine on that title as well. Quoting Thomas Jefferson on government:1

The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.

In other words, where injury or harm to others can be shown, the power of government legitimately extends to that harm. Where no legitimate harm or injury can be shown is where no legitimate power of government exists. Glenn Beck recently quoted Thomas Jefferson’s words when asked by Bill O’Reilly why Beck doesn’t cover cultural issues on his show, "I believe what Thomas Jefferson said. If it neither breaks my leg, nor picks my pocket, what difference is it to me?"

Libertarianism’s foundation is the word’s foundation: liberty. In the dictionary of the English language, 1797 edition, by Samuel Johnson, liberty is defined as2:

1. Freedom as opposed to slavery.
2. Freedom as opposed to necessity.
3. Privilege; exemption; immunity.
4. Relaxation of restraint; laxity.
5. Leave; permission.

Notice that the first two definitions refer directly to freedom, also defined in the dictionary as:

1. Liberty; exemption from servitude; independence
2. Privilege; franchises; immunities
3. Exemption from fate, necessity, or predetermination
4. Unrestraint
5. The state of being without any particular inconvenience
6. Ease or facility in doing or showing any particular thing

Many of these words should be familiar to you if you are at all familiar with the Constitution of the United States. Looking at these definitions, we clearly see around what the Constitution was designed: the very concept of liberty, the idea that the reach of government extends only to protect the rights of the people. Government cannot create rights, only protect the legitimate rights of the people who are or become subject to her jurisdiction, and in case you’re wondering, this means more than just citizens of the United States, but all people who are in this country, legally or not.

Where no legitimate harm has occurred, government is to be hands off. Where legitimate harm can be shown, government is to provide for a redress of grievances, civil or criminal, even when that harm has been caused by the very government that is to be protecting the rights of the people. Beyond this, the government, acting in its role as protector of rights, must defend those subject to her jurisdiction from the harm of foreign states and foreign nationals where possible.

One thing that appears to have been lost, or conveniently overlooked, for some time, and it still occurs today, is the line that divides the government from the people. Government has become so ubiquitous in our lives, so interwoven with our daily affairs, that this line has been almost erased. Whether this is part of some grand plan by a particular political segment of our society, as some such as Glenn Beck have alleged, remains open for debate, but one thing is obvious: we are beyond the point where the people fear the government instead of the other way around.

When governments fear the people there is liberty. When the people fear the government there is tyranny.

— Attributed to Thomas Jefferson

The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.

— Patrick Henry

Government is not there for the people or for the benefit of the people. And I’m referring not only to the Federal government, but also to State and local governments. If the government is here for the people and for their benefit, then the people can sway government to give them whatever benefit they desire — the very foundation of tyranny. This benefit can mean the suppression of rights for one class of people that gives you a tingly feeling between your legs, or exorbitant taxation that does little to boost the unfortunate and much to bring down the fortunate.

To borrow the words of Henry David Thoreau, "government is best which governs least."3 If you want to see this particular idea in action, consider the local governments for most municipalities in the United States.

Being libertarian requires understanding the legitimate role of government, but it goes further than that and also requires understanding that while you might not like certain things that occur in society, unless you can demonstrate actual and legitimate harm, you have no right to call for government intervention, including legislation. Being libertarian requires you to ask one question with regard to each action the government aims to take: is it legitimate?

And the will of the people is not legitimate by default. Finishing with Thomas Jefferson again, from a letter written in 1819 to Isaac H. Tiffany:

…rightful liberty is unobstructed action according to our own will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the right of an individual.

That is libertarianism at its core.

  1. Jefferson, Thomas. (1787). Query XIV. In J.W. Randolph (1853), Notes on the State of Virginia (p 170). []
  2. Johnson, Samuel. (1797). A dictionary of the english language. [Google Books] []
  3. Thoreau, Henry David. (1849) "On the Duty of Civil Disobedience". Quote: "I heartily accept the motto, ‘That government is best which governs least’; and I should like to see it acted up to more rapidly and systematically." []
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Rights of marriage

Here’s an interesting question that no one seems to be asking in this enormous debate on gay marriage: do you have a right to get married?

Now if we were to go by the definition of a right that I have presented several times1, the answer is a definite No, you don’t have a right to get married at all because marriage is not really an individual right. Instead marriage is an extension of a right we all have: right of association — i.e. you have the right to pick your friends, lovers, acquaintances, and colleagues.

So how does marriage come into play?

Well marriage is a construct. It is not something that exists naturally; it is something that had to be created in order for it to exist. In modern society marriage is more a construct of law than a cultural tradition, and as such has the force of law backing it.

With that force of law come certain benefits to encourage individuals to seek out a partner and get married. These include:

  • Rights of survivorship — property rights in everything you own automatically transfer to your spouse upon your death, unless otherwise overridden by contract (including a will or trust) or lien
  • Power of attorney — if you are unable to make your own decisions regarding medical care, finances, and your estate, your spouse has automatic power of attorney, though this power must be exercised purely in and for your benefit, and this power can be overridden or stripped if not exercised appropriately
  • Insurance and other employment benefits — your spouse can be included in your benefits, if you so desire, and in many States your spouse can take advantage of your benefits automatically for a period of time after your marriage without any additional incurred cost to the owner of the benefits
  • Tax benefits — this is limited. If you file your taxes as the status "Married filing jointly", then you can take advantage of a higher standard deduction that could overall reduce your tax burden or increase your tax refund. This can be especially true if you or your spouse doesn’t work, or if there is otherwise a significant gap between incomes. But there comes a point with income where this benefit basically vanishes and the only benefit to filing jointly is reducing paperwork. I’ll explore this in a later article.

So as you can see there is a large legal framework surrounding marriage, providing many legal benefits to encourage others to get married. But it is still nothing more than a legal construct, a relationship status recognized by law instead of one that is readily recognized as a construct of nature such as the parent-child relationship. In creating this construct of law, certain "rights" were created as well.

However in the construct of law, it has been established to be immediately exclusive to only certain couples. Previously it used to be even more exclusive than it is today, not allowing for any non-white person to marry a white person, regardless of what the couple actually wanted, so-called anti-miscegeny laws. The one interesting thing about many anti-miscegeny laws is that non-whites could marry other non-whites, but whites could only marry other whites.

These laws were overturned unanimously by the Supreme Court of the United States in the case Loving v. Virginia2. Today the exclusion rests only with couples of the same sex.

Albeit the exclusion is of couples recognized to be a minority, it is still exclusion, and this exclusion, in my opinion and recently the opinion of the United States District Court for the Northern District of California, is in violation of the Fourteenth Amendment to the Constitution of the United States.

  1. "What are rights?" — March 4, 2010
    "Do you have a right to healthcare?" — April 3, 2010
    "Who grants rights?" — August 6, 2010 []
  2. 388 US 1 (1967) []
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Independent health insurance

One thing in this health care debate that has frustrated me to no end is how both Republicans and Democrats make it seem like unless you have a job you cannot have health insurance at all. Well this is kind of true as without the job you can’t pay for insurance, but they make it seem like your only option of having health insurance is through your employer.

Quoting the Republican platform (page 38):

To empower families, we must make insurance more affordable and more secure, and give employees the option of owning coverage that is not tied to their job.

Quoting the Democratic platform (page 10):

Families and individuals should have the option of keeping the coverage they have or choosing from a wide array of health insurance plans, including many private health insurance options and a public plan.

Employees already have the option of getting more affordable coverage not tied to their job without the need for a "public option". It’s called shopping around and doing the math. You are not required to go with whatever your employer provides. Most choose to do so simply because of the convenience of not having to shop around and also the convenient deduction from their paycheck.

I have my own health insurance plan through Blue Cross Blue Shield of Kansas City instead of my employer. Why?

My employer is self-insured. This means there is an insurance division of the company itself, and part of my paycheck goes to fund the insurance I had. When I first started with the firm, I was coming off a lengthy unemployment, so I signed up with the company insurance plan just to get insurance right away. I even qualified for and received a $1,000 discount off my annual premium.

Later in the year, notices went out of upcoming changes to the insurance plan, changes I didn’t like. But I didn’t have to live with it. I had other options, and I exercised them by shopping around for something else to see if I could find something better.

And I did.

And in November of last year, I signed up with the policy I currently have. I have a lower deductible and better prescription drug coverage, plus I can walk into almost any doctor’s office or hospital in Kansas City, and pretty close to almost any doctor’s office and hospital anywhere else in the country, and be covered.

All of that for slightly higher than what was being deducted from my paycheck, even with the discount I was getting.

And my insurance is not tied to my job. So if I leave the company voluntarily or they lay me off, I still have my insurance for the same rate I pay now, and I don’t have to worry about trying to pay an astronomical amount through COBRA to keep the same coverage.

Now there is one caveat: I cannot deduct my health insurance premiums on my taxes unless I itemize, and even then my insurance premiums must exceed 7.5% of my adjusted gross income (that’s some expensive insurance, for me at least given my annual income). For lower income families, however, this might still be an option, and it’d be a consideration as part of doing the math.

So Republicans and Democrats, if you want the people exercising their options with health insurance, allow them to deduct independent health insurance premiums without having to meet a minimum threshold and without having to also itemize.

But then again, as we all know, the health care reform law has little to do with health care, and even less to do with reform. It’s all about seizing and consolidating power.

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Who grants rights?

Who grants you your rights?

This is one question that is an argument of the pious. It’s similar to questions like "who created life". The idea behind the question is that without God you don’t have rights, kind of like without God you have no morality.

Not true.

Let me submit this question for your consideration: is it possible that your rights still exist even without a deity or god?

Many cannot seem to fathom the idea, yet if you read through this blog, it is one I readily defend. I am an agnostic atheist, yet I believe everyone has certain rights. Several months ago, I submitted this idea for your consideration about what constitutes a right:

A right is inherent and inalienable, something for which no action is required of anyone else for you to retain, but much action is required of you for you to protect.

In this I mean that whatever you can assert with your own strength is a right. This includes freedom of speech, as I discussed the right to bear arms, and certainly does not include the false right of health care. And when individuals acting together in concert to defend their individual rights against a collective seeking to oppress all, great things can and do happen.

So again, I submit for consideration the idea that you still have rights even if God is a figment of your imagination.

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Responding to the Republican platform – "Traditional" marriage

Over a long series of blog posts, I’m going to pick apart the 2008 Republican Platform and respond to it, one or several sections at a time. I won’t be going in order, though, and some statements may be omitted from rebuttal if they are general or introductory statements. Some parts I know I will be stating agreement, while in others I will be stating opposition.

You can find a copy of the Republican platform at the RNC web site.

Now if you’re a Republican and you’re pissed that I’m going to be doing this, don’t worry, I’ll also go over the 2008 Democratic platform as well. To begin with the Republican platform, I’ll start with a topic I’ve yet to address on this blog: "traditional" marriage.

* * * * *

On page 53 of the Republican platform, you’ll find the Republican party’s idea of marriage. Now before I begin rebutting this, let me make this clear that I will not be openly discussing gay marriage or "marriage equality". I will only be responding to the statements made, and such will be the same in subsequent articles.

Amending the Constitution

Because our children’s future is best preserved within the traditional understanding of marriage, we call for a constitutional amendment that fully protects marriage as a union of a man and a woman, so that judges cannot make other arrangements equivalent to it.

One thing I find astonishing about this paragraph is how the Republicans have contended that Democrats want to stifle debate. There is no greater way to stifle debate on a topic than to ratify a strictly-worded Amendment to the Constitution of the United States. Republicans don’t like the idea of homosexuals marrying, and they don’t like the idea of polygamy. Great, I understand that being their point of view.

However amending the Constitution is not the way to go on this. It stifles debate immediately and pretty much permanently, assuming of course that there is support not only in Congress but also in the state legislatures to ratify the amendment to begin with. I find the notion of pushing for a Constitutional amendment cowardly.

Plus they say that our children’s future is "best preserved" when there is a "traditional" family. Unfortunately there isn’t much counter-data that might shine light on the potential fallacy of this notion, but something tells me that if a general loving household, whether it be a traditional family or not, is deemed more important through actual research and data, the Republican party won’t waver from this belief.

* * * * *

Children in the household

Republicans recognize the importance of having in the home a father and a mother who are married. The two-parent family still provides the best environment of stability, discipline, responsibility, and character.

This statement is incomplete as it says nothing of the quality of the people raising the child. It doesn’t matter if the child is raised in a home with a married father and mother if the father and mother fight, yell, or are otherwise disrespectful toward each other. Tensions between parents do not reflect well on the child and may have adverse effects on the child’s physical and mental health.

Now one could say that it is implied that the child be raised in a loving household with two parents who are respectful toward each other and are committed parents, but if their opinion is for the child to be raised in a household with two parents who are loving and respectful toward each other, they should say it plainly.

When it comes to the "protection of marriage", the focus seems to always be about children. Why is there this presumption that married couples have children? Yes, okay, most marriages do result in, or result from, children, but not all do. Many couples do remain childless by choice, and that number is rising. To borrow a question asked during the "Prop 8 trial", should we nullify childless marriages? Should couples be given a certain period of time after their wedding day to have or adopt a child or risk nullification? It wouldn’t surprise me if there are people who do believe this.

While a focus on children is understandable, it shouldn’t be central to "preserving traditional marriage". The focus should always first be on the couple getting married. Only if children actually come into the picture should they gain focus, but no sooner.

* * * * *

Defense of Marriage Act

A Republican Congress enacted the Defense of Marriage Act, affirming the right of states not to recognize same-sex "marriages" licensed in other states. Unbelievably, the Democratic Party has now pledged to repeal the Defense of Marriage Act, which would subject every state to the redefinition of marriage by a judge without ever allowing the people to vote on the matter.

Believably the Democratic Party does oppose the Defense of Marriage Act, as it so plainly states in their 2008 platform (page 52). And this law didn’t "affirm" a right of the states to not recognize these marriages, it created that right. And as same-sex marriage laws loosen overseas, this law also tells potential immigrant same-sex couples to not bother coming to the United States.

The Defense of Marriage Act made default the status of same-sex marriage recognition between States as not recognized. While the Act doesn’t stifle a State’s ability to say "we’ll recognize same-sex marriages", as some have, the default should not be "not honored". Instead, absent a State’s laws to the contrary, the default should have been recognition of the marriage with the ability for the State to voluntarily say "No".

* * * * *

Restricting appellate review

We also urge Congress to use its Article III, Section 2 power to prevent activist federal judges from imposing upon the rest of the nation the judicial activism in Massachusetts and California.

Again, this is about stifling debate in the Courts. Basically, it says that they want their way, and they don’t want the question of whether laws like Proposition 8 violate the Constitution to be heard by Federal courts. Again, this is also a cowardly tactic.

This also presumes that the judge or court who hears the case will be "activist", which basically means the judge will rule against what they want, and so to prevent the "damage" from going any further than it already has, they want to stifle debate on the topic and prevent any appellate judicial review. Wow.

The Republican party has campaigned themselves to be about personal and individual freedom, and what is freedom without the ability to decide for yourself who you will marry? Further what is freedom without the ability to petition a court for a review of a ruling against you?

Is this really a party that is about freedom? Doesn’t sound like it.

* * * * *

Marriage and Divorce laws

We also encourage states to review their marriage and divorce laws in order to strengthen marriage.

Strengthen marriage or stifle divorce? Wait, stifling divorce will strengthen marriage? I really hope you don’t actually believe that.

In virtually every State it is relatively easy to get married. Pay a fee to get a license, find someone to officiate, find witnesses if required, get married, then file the license and certificate with the proper authority. Some States also require a blood test of some kind (to what end I have no clue).

Divorce is relatively easy as well, that is where there is mutual amicable consent to the divorce, and we all know how common that is. But a couple that is not amicable, loving and respectful should not be married, and attempts to make divorce more difficult ignore this reality. Yes divorce is on the rise, but that doesn’t mean we should make it more difficult, nor does it mean we should make getting married more difficult. Restricting marriage and divorce is restricting freedom of association.

On the contrary, we need to look at why people are getting married and divorced. Did the couple conceive a child and feel obligated, either by society, family, or a "sense of duty" to get married? Were they a young couple in love and got married "on a whim" without fully evaluating what it really means to be married? Did planning the wedding seem to set a bad precedent for the marriage itself — i.e. was one party so overly concerned with the perfection level of the wedding that it bordered on psychosis?

With marriage and divorce, the law isn’t the problem. The problem lies with the people who get married and divorced, and that is where questions regarding the two will be answered and solutions discovered. If you ignore the people and go straight to the law, you’ve not solved the problem, and probably have only made it worse.

* * * * *

Parental rights

As the family is our basic unit of society, we oppose initiatives to erode parental rights.

I’m unsure of what, if anything, this has to do with traditional marriage. Any adult (or teenager) can be a parent, married or not. But I’ll humor the statement, vague as it is.

First, it is actually the individual that is the basic unit of society, not the family. After all we don’t count the population by households or families, but by individuals.

But the big question that needs to be asked is how parental rights are being "eroded". Some cases I’ve read about are just plain stupid. For example in 2006 in Cabell County, West Virginia, a married couple who babysat a child named Senturi sued the child’s mother, Misty, for custody on the grounds that they were "psychological co-parents of the child". The family court agreed, handing down an order for temporary, but full, custody of the child to be transferred to the babysitters.

On eventual appeal to the West Virginia Supreme Court of Appeals, the order was overturned and Misty’s parental rights were restored.1 During oral arguments, Chief Justice Robin Davis allegedly commented that if they affirmed the family court order, the babysitter of her child could sue and seek custody.2 Definitely a dangerous idea.

A lot of cases that are cited as erosions on parental rights aren’t so cut and dry. For example there is a case cited by the web site ParentalRights.org regarding a thirteen year-old boy who was removed from his parents’ custody after he complained to school counselors that he was being taken to church too often. There are so many holes in this story it’s difficult to figure out whether this is a legitimate infringement on parental rights, especially since, as their web site points out, their description of the case is merely hearsay from a named attorney.

And then we have legitimate affronts to parental rights, cases where the child is actually taken from parental custody for no legitimate reason at all. One case in point has already been cited above, the case involving Senturi and her mother, Misty.

But I’m also talking about children stolen from lesbian and gay parents with full cooperation and sanction of the court. In September 1993, Henrico County, Virginia, Circuit Court Judge Buford Parsons, Jr, declared as an "unfit parent" Sharon Bottoms, lesbian mother of her son Tyler, stripping custody of Tyler from her and awarding it to Sharon’s mother, Pamela Kay Bottoms, who had sued her own daughter for custody of her grandson.3 The sole reason for removing Tyler from his mother’s home and care is that Sharon is a lesbian.

The case would eventually make it to the Virginia Supreme Court4, who would rule 4 to 3 against Sharon Bottoms, in what is described as a bitterly divided ruling. The Virginia Supreme Court would invoke Virginia’s sodomy laws against the mother, stating that "conduct inherent in lesbianism is a class 6 felony in the Commonwealth; thus, that conduct is another important consideration in determining custody." Those laws would eventually be nullified by the United States Supreme Court.5

I know a lesbian couple living in Virginia raising a girl who, at the time of this writing, either is or will be turning thirteen years of age. I hope what happened to the Sharon Bottoms never happens to her.

Here’s my question: why are Republicans not standing up for the parental rights of gays and lesbians? Conservatives supported the decisions by the Circuit and Supreme Courts as vindicating crusades against legitimizing homosexuality. Are they only concerned with the parental rights of heterosexual couples? I think that question is already answered, and it’s in the second quote I rebutted (emphasis added):

Republicans recognize the importance of having in the home a father and a mother who are married. The two-parent family still provides the best environment of stability, discipline, responsibility, and character.

When you get down to the fundamental issue at hand, the issue isn’t whether the child is being cared for by a mother and father. If that were the fundamental issue or standard on which decisions of custody and parentage were to be decided, Senturi would not have been returned to her mother. What is at issue is whether the child’s needs are being met and whether the child is being raised absent neglect and abuse.

And to anyone reading this, yes, I know I skirted around much of the issue regarding the erosion of parental rights. I don’t feel like writing a book right now, as getting a full idea of how and whether parental rights are being eroded would require scouring every court docket for available opinions, documents, and orders regarding parents.

* * * * *

Final thoughts

Since the defense of "traditional marriage" is about opposing gay marriage, if not homosexuality in general, I will provide a statement here.

Disallowing homosexuals to marry is a violation of their right of association. They have a right to marry whomever they please. It is the law that is stifling this right, and the law is illegitimate on its face for this reason.

Those who oppose homosexual marriage and seek the passage of laws and amendments to constitutions, whether a state constitution or the Constitution of the United States, must, in advance of seeking such a measure, answer several questions fundamental to their effort, and any answers provided must be secular in nature — i.e. not deferring to religious beliefs or quotes from "holy" books.

First and foremost is how the concept of traditional marriage is, itself, impacted by allowing homosexuals to marry. This is one question that opposing forces have yet to adequately and effectively answer. Allowing homosexuals to marry is not the same as excluding heterosexuals from marrying. The power to marry must include everyone.

Second, how is society harmed by allowing homosexuals to marry? Society certainly is harmed by not allowing homosexuals to marry, just as society was harmed by not allowing interracial heterosexual couples to marry for one simple reason: it was an affront to freedom. Riddle me this: how has Massachusetts been harmed since their Supreme Court vacated the laws prohibiting homosexual marriage?

For there to be a law, you must demonstrate how society is harmed absent that law. In other words, just because you don’t like something does not mean it should be illegal.

Feel free to comment below on this article and offer your opinion.

  1. In Re: Visitation and Custody of Senturi N.S.V., 221 W.Va. 159, 652 S.E. 2d 490 (2007). [Full text of opinion]. []
  2. Korris, Steve. (2007, October 19). "Justices defend motherhood in Cabell case". The West Virginia Record. []
  3. Henry, William A., III; Cole, Wendy; McDowell, Jeanne. (1993, September 20). "Gay Parents: Under Fire and on the Rise". Time. []
  4. Bottoms v. Bottoms, 249 Va. 410, 457 S.E.2d 102 (1995) []
  5. Lawrence v. Texas, 539 US 558 (2003) []
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"Citizen Congress"

In response to my last article regarding a near-continuous attempt by Rep. Serrano to repeal the 22nd Amendment, I received a rather interesting comment that I ultimately decided to not approve because it was not relevant to the topic at hand:

Here’s a practical Tea Party type strategy to create a “Citizen Congress”

A Congress of career politicians will never represent “We the People”, because their highest priority is getting reelected with the help of Big Money.

But “We the People” have more votes than “Big Money” has, and thus can end Congress as a career for professional politicians by never reelecting incumbents.

We can impose single terms every two years, by never reelecting Congress.

Always vote, but only for challengers. Never reelect incumbents.

Keep this up until Congress is mostly “one-termers”, a citizen Congress.

Then keep it up every election, to make a citizen Congress a permanent reality.

Every American’s only intelligent choice is to never reelect anyone in Congress!

The only infallible, unstoppable, guaranteed way to get a truly new Congress, and a cleaned up new politics is

NEVER REELECT ANY INCUMBENT! AND DO IT EVERY ELECTION

Now while this idea sounds intriguing, it is rather unfeasible and could actually do more harm to this country than good, and in my opinion, suggesting it shows a lack of understanding of how the government not only actually works but is supposed to work.

I know some will disagree with me on this, but some incumbencies are necessary for sustaining this country. We, however, as responsible citizens, need to be considerate of who will be or continue to remain an incumbent and who will not.

If incumbencies were not intended by our Founders, they would not have written into the framework of our government open-ended terms. The reason is because known lame-duck terms in office can, as the argument goes for lame-duck presidents, render a politician politically weak than he or she otherwise would be had the end of term been unpredictable, as it currently is with Senators and Representatives.

Constantly voting in the opposition has the potential to mitigate risks by incumbent politicians, but if it were to become the norm, it would end up being an implied term limit, rendering our elected officials politically weak. While to some this may sound like a good thing, it is, in actuality, not.

Our Federal government is supposed to be, by design of the Constitution, subordinate to the States and, ultimately, the People. Just as your employer approves of your work by allowing you to remain employed, and firing you if your performance isn’t up to par, so too we show approval or lack thereof for our elected officials by voting.

If we were to continue to vote out our elected officials at the end of their term, they will either take great political risks, thus posing a greater political danger to the United States than a long-serving incumbent, or they won’t accomplish anything at all. Both must be avoided, but it is a delicate balance that is maintained by choosing our incumbents wisely and properly vetting each candidate.

The only time where the States have spoken and said that an open-ended term is not good is with the office of the President of the United States. The Executive Branch carries with it much authority, and with the wrong person sitting there, the President has the opportunity to wield a lot of power in inappropriate directions. However this change in point of view came as a result of the Seventeenth Amendment, which took the choosing of Senators away from the States and placed it with the People.

If you were to read the Constitution, thoroughly, you would discover two things: open-ended terms for both Houses of Congress are intentional, and an open-ended terms for the Presidency is also intentional.

The reason for the open-ended terms is because, originally, only one section of our government was directly popularly elected: the House of Representatives. State legislatures chose the Senators, and that process should be restored. And by appointing Electors, the state legislatures also chose the President of the United States, and may appoint said Electors absent a popular vote.

The Founders never intended the President to be popularly elected, rendering arguments about disparities between the popular vote and the Electoral College moot when properly thought out.

The President of the United States answers to Congress, namely the Senate, and the States, not the People. The Senators answer to the States, not the People. Only the House of Representatives answers to the People, and it is time that balance be restored.

But not permitting any incumbencies is not the way to go. Instead we need to undo the damage that has been done by restoring through the Amendment process the way the Founders initially intended our government to work.

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Repealing the 22nd Amendment

The Twenty-second Amendment to the Constitution is one part of the Constitution that should never be touched. Never. A limit on the presidential term is necessary. I warned on Facebook months ago to be immediately alarmed when someone aims to remove this limit.

Well unbeknownst to me at the time I made that statement, a Congressman has been trying for over 13 years to do just that.

Serrano.jpgAt the start of every congressional term since 1997, most recently introduced in 2009, Congressman Jose Serrano [D-NY(16)] has introduced a joint resolution calling for the repeal of the 22nd Amendment. It has never made it out of committee.

Now the big question that needs to be asked is why Serrano wants to see that Amendment repealed.

Bear in mind that he has been trying this since 1997, through Clinton’s second term in office, Bush’s two terms in office, and now in Obama’s first term, so this is not an attempt specifically aimed at eliminating the term limit such that Obama could run indefinitely (assuming he remains popular after this year), as some bloggers have alleged, but it is definitely something of which to be concerned.

Now there are some valid arguments for repealing the presidential term limit. One analogy I saw on a blog is similar to a company telling you that you’ll have your job for another year, but then you’re fired. The “lame duck” term of the President, many have argued, weakens the President politically, or drives him to take greater political risks because another term is no longer a prospect, so long as he doesn’t do something to get impeached.

But while there are good political arguments for the repeal of the 22nd Amendment, there is always that one overwhelming argument: Franklin Delano Roosevelt and his four elected terms in office, though he would die in office shortly into his fourth term. Congress did not want that ever to happen again, and the States agreed.

Now term limits were not instituted in the Constitution by the Founders because they thought that the people would be able to determine for themselves when the time was right to replace whoever was in office. However they also intended for the President to be subordinate and answerable to Congress and the States. The proposal and subsequent ratification of the Twenty-Second Amendment confirmed that in a most beautiful manner, and for that reason it should never be repealed.

Update: Please read my follow-up to this topic if you are someone who is concerned about Serrano’s recent re-introduction of his proposal to repeal the 22nd Amendment.

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Stripping jurisdiction from the Federal courts

Here is an interesting question to ponder: does Congress have the power to exempt from the United States Supreme Court or Federal courts cases dealing with certain topics?

This question arises from a rather startling trend I’ve noticed within conservative circles, and that is the desire to see certain topics stripped from Federal jurisdiction, the most prominent being marriage laws. Quoting the 2008 Republican Platform (page 53):

We also urge Congress to use its Article III, Section 2 power to prevent activist federal judges from imposing upon the rest of the nation the judicial activism in Massachusetts and California.

To begin the discussion, let us evaluate Article III, Section 2 of the Constitution of the United States, beginning with the first paragraph which outlines the scope of judicial power:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The idea that Congress can restrict the jurisdiction of the Federal courts is derived from the second paragraph of the section (emphasis added):

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

This emphasized text known as the Exceptions Clause. Now Congress cannot take jurisdiction away entirely from the Federal courts. The judicial power is strictly set out in the Constitution and Congress cannot muck with it. Where the Supreme Court has appellate jurisdiction a lower court must have original jurisdiction. Congress cannot usurp the judicial power by failing to provide a court of original jurisdiction, and it cannot append the original jurisdiction of the Supreme Court except by way of amending the Constitution.

In other words, under Article III of the Constitution, and in accordance with the First Amendment’s protection of the right to a redress of grievances, there must always be a court of original jurisdiction for the entire scope of the judicial power, but whether there will be a court of appellate jurisdiction is entirely up to Congress.

Congress is able, by the Constitution, at any time, to take away from the Circuit Courts and the Supreme Court the ability to hear an appeal on a specific case, a range of cases, or possibly even all cases. Don’t think this can actually happen? It already has. It is known as "jurisdiction stripping".

With regard to the case Ex parte McCardle, 74 US 506 (1869), Congress stripped from the Supreme Court of the United States the ability to hear the appeal of that case while the Court was hearing and adjudicating the case. Now completely powerless, the Supreme Court was constitutionally required to throw out the appeal.

Worst still is what led to the case. William McCardle was a journalist and Sergeant in the Confederate Army. After the Civil War during Reconstruction, exercising his rights of free speech, he published literature advocating opposition to the Reconstruction laws in place at the time. He was arrested and jailed under by a military officer by authority of the Military Reconstruction Act of 1867.

McCardle invoked his right of habeas corpus. When the writ was issued, it was automatically reviewed by the Court, and the court found his military detention to be lawful. McCardle appealed to the United States Supreme Court under the Habeas Corpus Act of 1867, which granted them appellate jurisdiction of habeas petitions. Oral arguments were heard, but before the Supreme Court could render an opinion, Congress took swift action and repealed the Habeas Corpus Act, effectively removing the Supreme Court’s appellate jurisdiction.

Powerless to act, the Supreme Court, acting unanimously, affirmed Congress’s power under Article III, Section 2, and dismissed the appeal. McCardle had no option for appealing his military detention.

Fast forward to today.

There are two lawsuits currently before United States District Courts for adjudication: the lawsuit by the Obama administration against the Arizona immigration law, and the lawsuit by several States against the Obama administration regarding the Patient Protection and Affordable Care Act of 2010. Think about this for a moment.

Let us presume the Courts rule in favor of the Obama administration on the Arizona law. Congress, with their majorities, could act swiftly to remove from the Circuit Court and the Supreme Court the ability to hear appeals on that case. The same if the Court were to rule in favor of the Obama administration on the PPACA. This has the ability to set a dangerous precedent.

And the Republicans want Congress to do this to take away appellate review with regard to gay marriage and, likely also, abortion. Interesting how the tables can be turned against you on something a little more vital to our republic. I wonder if the Republican party is willing to withdraw from their platform the call for the exercise of Article III, Section 2. Doubtful.

Now Congress cannot take away the original jurisdiction of the Federal judiciary, and there must always be a court of original jurisdiction. But whether any Federal court will have appellate jurisdiction is up to Congress, and they can take away appellate jurisdiction for any to all cases at any time.

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Window films

Windmills_D1D4__Thornton_Bank.jpgI typically don’t talk much about energy efficiency. Living in an apartment, unless you can negotiate with the property management about your appliances, you typically have to take what you’ve got.

This means that the options to living more energy efficient are limited.

Now there are some cheap methods you can use to reduce how much energy you use. You’ve probably heard of them, but one of the most cost effective methods I’ve seen is weather stripping. It quite literally pays for itself in a hurry. Only about $3 worth of weather stripping can save you more than that on your energy bill, especially in the winter.

For example, I weather stripped our front door (which leads into a hallway) until it seals like a door to the space shuttle, and that alone dropped about $5 off our first energy bill for our heating system. For the apartment in which I previously lived, which had a natural gas heating system, weather stripping alone on our front door and windows cut our natural gas usage in half compared to previous years.

But what about the summer?

Shortly after moving into our current apartment, my fiancée and I purchased thermal curtains. You know the kind, heavy curtains that are all white on one side that are supposedly able to keep a room cooler than normal curtains? I’ve had mine up for a year and, let me tell you, they don’t do squat when you’re in an apartment on the top floor of an apartment building with bedroom windows facing due west.

The master bedroom and second bedroom (office) in my apartment are always ovens in the afternoon and early evening. And because the living room is shaded and on the east side of the apartment building, our living room ends up freezing cold, partly because of the weather stripped front door, but mainly because our air conditioner is working harder trying to make up for the hotter bedrooms in the afternoon.

There is one simple reason the thermal curtains weren’t doing squat: they can’t stop the heat from getting into the room in the first place. So I started looking around and came across discussions of window films. You can find it at your local Lowe’s or Home Depot. Do they work?

You need to install the window film to a cool window, so for us, we installed the film on Tuesday night into early Wednesday morning, July 13th and 14th. Again, west facing window, so it was either be up late or get up early to do this. We also only did one room, the master bedroom since it has the larger window of the two and the window was easier to access without having to move furniture.

Now one thing about the films they don’t mention, partly because it may not apply to you, is that for the first day after installing the film you may notice a difference in the way the room feels, but you might not notice a difference in your energy usage. But over time after the film cures, you should start noticing a difference, partly because the change in how the room feels will allow you to turn your A/C down to keep your home or apartment from feeling like a freezer.

So what kind of results have I seen? Well again, I’ve only filmed up one window, but the other will be taken care of soon. Now where I live we actually have a power meter on our HVAC system separate from the main power to the apartment. This makes gauging which methods work and which don’t a little easier. Plus our power company has meters that allow for daily tracking of power usage.

Now remember it was in the early morning of July 14th that we installed the film, and Thursday evening (July 15th) at about 8pm (after I got home from work) — or was it last night (July 16th)? — I turned the thermostat to a higher temperature. As you can see with this screenshot from my power company’s web site, the changes are dramatic:

energyuse.png

Wednesday was also the peak energy usage day for the month of July on kWh. I estimate that the film for both windows will have paid for itself by the end of September. Isn’t it great so see some real numbers?

HeatControl.jpgOkay so you must now be wondering: which film did we get? Gila Heat Control Platinum. You can find it at your local Lowe’s home improvement store. You can also read more about it on Gila’s web site. Home Depot sells something similar, I believe. If you have a large home, you can also have 3M come out to your house and do a professional installation of their window film products — but you can expect that to be expensive, but probably worth it in the long run.

The film itself will run you about $25 for the smallest roll, which gives you 30 square feet. The 45 square foot roll is only $30, though, so the bigger the window the better the value, but don’t buy a larger roll than you need, but do try to account for multiple windows when buying the film.

Now if you do buy this film, there is a kit that you can buy as well. Get it. It’s only $10 and it comes with several things that make installation of this a lot easier. Plus the installation instructions refer to what is in the kit multiple times. The kit comes with a solution to be sprayed on the film and the window during installation. That bottle should be enough for a 40 square foot window, so if you’re doing multiple windows, pick up a couple bottles (they’re only about $4 each).

And if you’re doing windows that are divided into multiple small panes (our master bedroom window is 24 small panes approximately 11″ x 12″ each), be prepared to spend several hours doing just that one window.

In the kit is a small cutter as well — use it to only cut the film from the roll. To cut off the excess film after you get it on the window (watch the installation videos for details), go to Office Depot or OfficeMax and spend about $5 and get an X-acto knife. Trust me, it makes cutting that film much easier.

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Drive safe out there

It’s become something of a reflex for me. Whenever I part company with someone, I tend to almost instinctively say “drive safe”, or something like that. I started doing that while in college, and I’ll explain why, but I want you to watch this video first if you haven’t already seen it:

Thanks to my friend Stephanie for bringing this video to my attention.

In one week back in 2004, while I was in college, I lost two acquaintances to car accidents. I lost another friend, my college roommate, actually, six months before that tragic week. Last year while I was moving stuff down, I witnessed an accident on I-35, in which thankfully no one was killed, and I see people swerving through traffic all the time in fashions similar to what this video shows.

Please, drive safe out there. I don’t like seeing crosses on the side of the road.

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