Politics

This is getting creepy…

Posted on by Kenneth Ballard / 0 Comment

I must have some kind of political sixth sense that is currently untapped…

On January 7, 2012, I posted an article calling for Rep. Gabrielle Giffords to resign, stating that it’d be in the best interest of the people she represented for her to step aside and let someone else take her seat and provide some real representation. About two weeks later, she announced her resignation.

And on Monday, April 9, I posted an open letter to Rick Santorum that said the best thing for him and his family, especially his daughter Bella, would be to end his campaign. The next day, Santorum announced he’d be "stepping aside".

Both have made courageous and carefully considered decisions, without doubt. And they were, arguably, decisions for the better. I doubt either of Giffords or Santorum have actually read my blog, so perhaps this is just purely coincidence.

Letters to politicians

Open letter to Rick Santorum

Posted on by Kenneth Ballard / 0 Comment

Mr Santorum,

Consider this a statement from a concerned citizen regarding your presidential bid. While I’ve already written that I don’t feel you would be electable, let alone a good candidate for the Republican party, recent news regarding your daughter gives me reason to believe that you should not be in politics at all right now.

Your daughter’s plight has brought Trisomy 18, also called Edwards syndrome, to the forefront of discussions both in politics and medicine. This is certainly a good thing. The more publicity a particular disease or disorder receives, the more money research with regard to those respective diseases and disorders will bring. I cannot possibly underestimate the importance of that, especially with genetics being a major part of research in medicine right now.

The prognosis for your daughter is not good. You know this. Anyone who glances at even a passive article regarding Edwards syndrome will know this.

I hate to word it in this fashion, but I can think of no better: until your daughter passes away, she will be little more than a distraction to your political aspirations.

Since you have started your political campaign for President, your daughter has been admitted to the hospital several times. And each time you have been there. You are certainly a caring father, but your family comes first. Your daughter comes first.

Let me repeat this: your daughter comes first.

This means that you should not be rushing back out onto the campaign trail when your daughter is released from the hospital, like you have these past few times. You should be returning home to be by her side, and not for just a little while until you feel you can get away again and keep campaigning.

You might feel the country needs you, but your daughter, Bella, needs you more in words she likely cannot say.

And if you are hoping stories of your daughter will help your campaign, you are despicable in ways words cannot describe.

Mr Santorum, the time has come to withdraw from the presidential campaign. Not only do you stand little chance of catching up, let alone overtaking Mitt Romney in the delegate count, your daughter needs you more. You cannot be an effective President with your daughter’s illness hanging over your head. Again, you may feel this country needs you, but your daughter needs you more.

Leave the campaign trail and be with your family and your daughter. If you feel the desire, start a foundation for Trisomy 18 research. But national politics with a daughter in the condition Bella has presented is not a good combination, not for you, not for this country, and most certainly not for your daughter.

Sincerely,

A concerned citizen from the Kansas City metropolitan area

Politics/Science

Science and ideology

Posted on by Kenneth Ballard / 0 Comment

Science knows no ideology, so it upsets me greatly when people attempt to use scientific findings or conclusions to support their ideologies, whatever they may be. I hold a few ideologies, but those views are not compelled by science or scientific evidence or findings, but they are not contradicted by them either.

For example I am an atheist. I wasn’t converted by science or evolution. In fact I didn’t start studying evolution in any kind of detail until years after I declared myself to be an atheist. I am a strict constitutional originalist. There is certainly no science of any kind compelling that point of view.

Yet with science it seems that those who openly discuss against science try their damnedest to link any particular conclusion of the scientific evidence to an ideology, especially if the conclusions contradict a particular ideology already held. Look at the plight of Galileo for an historical example, as well as the still-ongoing controversy in the United States regarding evolution and the age of the Earth.

But my focus here is actually with a different area of science: climate change.

Now let me first say this: if you believe that our global climate doesn’t change and is not changing, then you can just stop reading now and go to a different web page, as you are someone who will not listen to reason and your presence here is a waste of my time. For the rest of us, I shall continue, but I will also add that I am not hugely versed in the climate change science, so I will be working more with summarizations than specifics.

What prompted my speech output is this video:

Science knows no ideology. Science knows only evidence and facts for which there is demonstrable evidence.

If you turn to science to look for evidence supporting an ideology with which you agree, or to denigrate an ideology with which you do not agree, then you are bastardizing the science. Science is reasoned explanations supported by evidence. Many ideologies tend to be far from reasoned with evidence being little more than a pipe dream.

And to deny that which is demonstrably true is to live in a dream.

The climate is changing. The climate has certainly not remained the same over the last 4.x billion years the Earth has existed. This planet has gone through many periods of warming and cooling. The climate has supported lush, tropical habitats that allowed for giant dinosaurs to roam the Earth, and it has been cold enough that mammoths survived only due to fur far thicker than your typical winter coat.

Right now the global temperature is on an upward trend. The data show this, even when accounting for anomalies and errors. Much of the trend has been linked to multiple facets of our existence and civilization. What is still unclear and difficult to predict is what the future impact this global warming will have upon the weather and climate.

The global human population did not reach 1 billion until around the year 1800 according to most approximations. The first Homo sapiens evolved approximately 100,000 years ago – I’m being conservative in that number, I realize, but to borrow the words of the late Christopher Hitchens, “I’ll take 100,000” as I don’t need a larger number to demonstrate my point. This means that for 99,800 years, the global human population lingered on slowly growing while still being checked by diseases and other naturally-occurring dangers until it breached the 1 billion mark about 200 years ago.

Over the last 200 years, the global human population exploded from 1 billion to the current estimate of just north of 7 billion individuals. The human population will expand by another 1 billion individuals every approximately 12 years at the current trend.

The global temperature is on an upward trend and the human population is on a upward trend, both of which have seen accelerations over the last 100 years. That is certainly a correlation that cannot go unnoticed, but is one causative of the other? Currently there is reason to believe the latter is influencing the former.

That is the science. That is what the evidence show and support. But where is the ideology? There is none, as again, science knows no ideology.

Yet many tie science to ideology and there is no reason for this. Science works only with that which is demonstrably factual. Anything else it discards. The evidence is completely blind to ideology and speculation.

One observation I find very troubling is that most ideologies to which ideologues attempt to link science are various perceived evils of one kind or another, but ones typically calling for mass killings, depopulations, and the like. Anti-vaxers say things along the lines of, to quote Viera Scheibner, PhD, “Vaccines are killing babies.” Kent Hovind, along a similar line, said  “Satan is seeing to it that well-meaning parents are destroying their childrens” immune system by putting over 22 viruses into their system before the age of two.” Again attempting to link science to an ideology or perceived evil.

The above-provided video asks the question of whether environmentalists are trying to rid the Earth of a surplus human population, and in asking the question the interviewer even brings up Charles Dickens’ “A Christmas Carol” in which Ebenezer Scrooge makes note of the “surplus population”. Why is there this need to link science conclusions with which a person disagrees to an overly-negative ideology?

Creationists of various flavors have long tried to tie Hitler or eugenics to evolution. Yet even if the ties were genuine (they aren’t, by the way), how is that evidence against the theory of evolution, arguably the best-supported scientific theory?

That is the part which drives me up a wall. It seems people and organizations would rather use the association fallacy (“guilt by association”) to denigrate findings and conclusions rather than address those findings and conclusions . And the “guilty by association” fallacy seems to be the common fallback of those who either cannot address that which they are attempting to attack or failed in such an attempt.

But while scientific findings and conclusions do not necessarily support or contradict any particular ideology, they certainly should not be used to argue compulsion. What do I mean?

Recently an article was published that showed that individuals who sit for longer than 8 hours a day have a higher chance of dying younger than those who sit for less than 8 hours a day. That is the conclusion of the medical study. Does this conclusion mean that we must now require that no person can be seated for longer than 8 hours total during the waking hours of their day?

Yet scientific findings have become the basis for laws in this country, sacrificing personal liberty and the freedom to make personal decisions. Salt and trans-fats are banned in many jurisdictions in the United States with others considering similar bans. While science can and should be a basis for guiding lifestyle decisions, with the assistance of a physician, it makes a poor justification for “one size, fits all” public policy decisions.

Pledge of Allegiance

Putting nationalism ahead of freedom and the Constitution

Posted on by Kenneth Ballard / 0 Comment

For a moment think about how the pledge of allegiance is typically recited. Think back to when you recited it in school. Was it with any kind of patriotic enthusiasm? In most cases, likely not. It’s typically mindlessly regurgitated in a monotonic, rhythmic, mechanized fashion by drowsy, unquestioning students at the start of a government-mandated school day. And I’ve even witnessed adults reciting the pledge of allegiance in the same kind of Pavlovian, monotonic fashion.

And do the students or even the adults really understand what the pledge of allegiance actually means? Of course not. The only “understanding” given to them is an incomplete and sometimes backwards description contrived by nationalist historians in a way to justify why every student in the United States must be compelled by law under fear of reprisal to recite a codified sentence derived from the words of a Christian socialist.

I mean, do you honestly believe that 5, 6 and 7 year-olds understand the pledge of allegiance? Of course they don’t. They are reciting it only to conform with their teacher’s instructions and, of course, to make their “patriotic” parents pleased that they’ve learned the pledge and can recite it from memory.

They don’t truly understand the words they are saying, and they certainly do not know the history behind those words. In fact so many people are unaware, likely blissfully so, of the history behind the pledge of allegiance. It’s one reason people can and do say asinine statements such as, “Americans who refuse to say the Pledge of Allegiance do not deserve their US citizenship.”

Worse still is the number of people who believe that the Founding Fathers wrote it! Now Sarah Palin has been the commonly-exploited example of someone publicly implying the Founders wrote the pledge, and included “under God” at the same time. But I think I’ve found a better example.

A Christian woman named Allenah penned a blog article in August 2011 that attempts to describe what the pledge of allegiance actually means. Now she completely fumbles it because she breaks… it… down… word… for… word… with only a couple exceptions and tries to explain the pledge through the denotations for each word in the pledge. That is not only overkill, but a completely incorrect and backwards way to explain the pledge.

But it only gets better when she summarizes her attempt with this:

In breaking things down as we have, it makes perfect sense why there are many who refuse to recite the Pledge of Allegiance. To these people I say- find another country!

Our Founding Fathers knew exactly what they were doing! They knew that it would be all too easy to become complacent with the nation we have.

Perfect sense? Perhaps I’m missing something. I mean, not only does she completely bastardize the pledge of allegiance in her attempt to explain it, but she finishes up with a display of ignorance with regard to history (the Founding Fathers did not write the pledge, and there is no reason to believe they’d be in favor of one) and throws in the “love it or leave it” fallacy to polish it off. Nicely done, Allenah!

Ugh…

* * * * *

I’ve explained the pledge in detail (here) including my reasoning on why I refuse to recite the pledge of allegiance (here). Let me make this clear: it is un-American to recite the pledge of allegiance. That’s right, I just said you are being un-American by reciting the pledge. Why? You are pledging allegiance to the state. The pledge of allegiance calls for loyalty to the state.

Numerous people have tried to tell me, in one way or another, that pledging allegiance to the flag is pledging allegiance to the Constitution, or they’ve said the flag represents the Constitution:

Dude, the flag represents the Constitution. It represents America. Saying the pledge of allegiance isn’t blind allegiance, but allegiance to the idea of Freedom, which is what our Constitution stands for. It’s all the same. You are making way to much out of this.

Here’s an obvious question: why pledge allegiance to the flag when you can, by changing just one (1) word, actually pledge your allegiance directly to the Constitution?

As I pointed out to the person who made the above comment in reply to me, the flag was originally created during the American Revolution (originally adopted on June 14, 1777), long before the Constitution, making it impossible for the flag to represent the Constitution. And as the flag can be changed at any time by our current government, through an ordinary act of Congress, how can the flag represent the Constitution? How can the flag represent anything other than the government that defined it (see Title 4 of the United State Code)?

Prior to mandates to recite the pledge, overturned in 1943 by the United States Supreme Court, the only time a declaration of allegiance was required by anyone was when mandated by a standing law. And those mandates typically required you to have been elected or appointed to some office or have entered the employ of the government. For the rest of us civilians, it was never demanded or necessary. The Constitution of the United States does not require a declaration of allegiance when entering office, not even for the office of President of the United States (from Article II, Section 1 of the Constitution):

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Freedom knows no allegiance. Freedom requires no allegiance, nor any declaration of allegiance, and my ability and right to exercise and enjoy the liberties protected by the Constitution is in no way conditional upon declaring or pledging allegiance “to the flag of the United States of America and to the republic for which it stands”, and so on and so on.

As such there is no reason to believe the Founding Fathers would have recited anything close to the pledge. In fact they likely would’ve been abhorrently appalled by it and the Lincolnian nationalism from which it is derived. And if you are confused by the notion of Lincolnian nationalism, reacquaint yourself with the Gettysburg Address. Thomas DiLorenzo elaborated on the idea of Lincolnian nationalism and Lincolnian statism in an article called “Pledging Allegiance to the Omnipotent Lincolnian State” (link at bottom).

* * * * *

Arguably the pledge of allegiance receiving the kind of attention it enjoyed is due only to the place where it made its genesis: a popular, family-oriented magazine called The Youth’s Companion. And the pledge was concocted and published to promote American nationalism. And what a success that has been.

Today as a result of over a hundred years of reciting, or rather regurgitating the pledge in its various forms, we have a country of people who have completely forgotten the Federalist ideas that are present in the Constitution. Instead of recognizing the pledge for its nationalist propaganda roots and ridding our society of it, the citizenry is more concerned, arguably more than ever, with protecting and preserving the pledge of allegiance, especially the words “under God”, and demonize as “un-American” anyone against the pledge while regurgitating nationalist propaganda and contrived statements as a means of defending it.

Our citizenry seems more concerned with protecting, preserving and defending the pledge of allegiance than it is our own Constitution. How is this? Ask a Republican if Republicans abide by the Constitution, then ask them if any act by George W. Bush while he was President violated the Constitution. Then ask them if any act by Barack Obama violated the Constitution. Compare the responses.

Republicans and Christians overwhelmingly want to protect and defend the pledge of allegiance. But they don’t recognize that the Federal government has been operating far outside its constitutional boundaries and limits for a long, long, long time, including under George W. Bush and also under Ronald Reagan, with little if any intention of correcting the problem. But Republicans aren’t alone in this either. The only difference is that Democrats and liberals aren’t nearly as vehement about preserving the pledge.

Indeed a bill called the Pledge Protection Act, which sought to remove the ability for the Federal judiciary to hear cases regarding the pledge of allegiance, has always been introduced into the House of Representatives by a Republican: Todd Akin, R-MO(2). The bill has also garnered typically Republican support, seeing success in the 108th and 109th Congresses due to Republicans and the majority they enjoyed, and was introduced into the Senate during the 109th Congress by Jon Kyl, junior Senator from Arizona serving with John McCain. Despite some success in the House, the bill never went anywhere in the Senate.

As such I must commend Republican nationalists for holding true to the party’s Lincolnian roots. While they speak of limiting the Federal government and pulling the Federal government back to compliance with the Constitution, their actions speak much louder as revealing them to be the hypocrites they really are: nationalists who want to continue the idea of a monopolistic national government operating outside the Constitution. Their motives and propaganda would likely disgust the Founders and Drafters they venerate and revere.

* * * * *

Ridding this nation of the 120 year-old curse known as the pledge of allegiance is long overdue. Despite many attempts by so many people, including Representative Ron Paul (who incorrectly referred to Francis Bellamy as an atheist), I am not convinced the pledge of allegiance can be segregated from its nationalist origins. Nor can it be segregated from its history.

Allegiance, whether declared or not, is not required to enjoy the protections of liberty provided by the Constitution. As I said earlier herein and elsewhere, liberty knows no allegiance. Being free does not require you to pledge your allegiance to any state. And the Founders certainly did not ask nor require that any person declare any allegiance to enjoy the liberty described by the Declaration of Independence as inalienable.

The Constitution of the United States transcends the government of the United States and the States therein. But if the citizenry does not affirm it as such, the government that is to be restricted by the Constitution can more easily escape its restrictions without being noticed. And the citizenry has not affirmed the Constitution as superior for such a long time. This I feel is due in part to the pledge of allegiance, as its recitation has the person improperly placing their allegiance, but that is only part of the issue. The big problem is the sentiment spreading through the citizenry that your rights are conditional upon nationalistic ideals, and they are not.

No person should be declaring their allegiance to the state. Instead, if you have the need or desire to declare any allegiance at all, declare allegiance to the Constitution of the United States (adapted from the oath of citizenship):

I do solemnly swear [or affirm] that I will support and defend the Constitution of the United States of America against all enemies, foreign and domestic; that I shall bear true faith and allegiance to the same; and that I take this obligation freely without reservation or purpose of evasion; [so help me God.]

Along with affirming the Constitution to be the Supreme Law of the Land, we must also study the Constitution and understand what powers it provides the government. Only when the people understand the structure of the fence that is supposed to contain our government can we better enforce the restrictions the Constitution provides and more faithfully demand our government adhere to those restrictions without fail or exception.

* * * * *

I love watching nationalists defend the pledge of allegiance. You never know what they’ll say next, and often what they say is easily refuted. In response to my assertion that our allegiance should be to the Constitution, one person said this:

We as citizens don’t pledge allegiance to the Constitution because WE DO NOT HAVE DUTIES to carry out in which we must PROTECT the Constitution and everything it represents.

As citizens of the United States, we are the last and ultimate arbiter of the Constitution. We must support and defend it. We are its protection.

Support and defend the Constitution by demanding our representatives in government obey the limits of that Constitution. If they want to exceed those limits, then we must demand they pull back or go through the Amendment process established in Article V of the Constitution to be granted the new power they seek.

Support and defend the Constitution by exercising the rights the Constitution protects. Assert those rights every day in everything you do. Exercise your rights of free speech by being unafraid to speak your mind and voice your opinion. Exercise your right to bear arms by purchasing a firearm. And learn how to assert with confidence your Fourth, Fifth and Sixth Amendment rights by reading the blog and watching the videos provided by an organization called Flex Your Rights.

Assert your rights and demand our elected and appointed officials hold to their oaths to be faithful to the Constitution. And for God’s sake stop pledging allegiance to the flag.

* * * * *

Links and resources

Videos

Health care/Life/Religion

Give credit where it belongs

Posted on by Kenneth Ballard / 0 Comment

Being on Facebook, occasionally you see people post things that catch your attention, such as this little number:

Here’s an update on my wonderful son-in-law, GOD has been working his healing hands on him!!!! Everyday since Sunday 3-18 [redacted] has been showing improvement.
This has taken ALL of us to our knees. GOD is good and we are keeping our eyes on him, not what is but, what is to come and that is the “Miricale of GODS Healing in [redacted].”thank-you for the prayers! Love [redacted]

This showed up on my news feed courtesy of one of my other friends making a comment. When I first saw it, I swear my heart stopped for a moment. And no my heart didn’t stop because I was suddenly taken by the reverence to God being shown here. No my heart stopped because of what is lacking from this anecdote.

When you are receiving care in a hospital, there is a class of elite people who will see to your every need while you are there. They will ensure you are as comfortable as possible, and are on call whenever you need them.

They are the nurses.

With the above anecdote, I can guarantee you that nurses have been watching over the patient around the clock with the attending physician checking in periodically for new orders, discussing the vitals and the like. And yet this person feels the need to show great reverence to God without once thanking the people who I can also guarantee are truly responsible for the progress the patient is showing.

When I see anecdotes like the one reproduced herein, I am glad I’m an atheist because I will always make sure that credit goes where it is properly due. Revering God without thanking the nursing staff is an insult to the nursing staff!

Thank the nurses. Thank the attending physicians. They are truly responsible for the care you receive in the hospital. Especially the nurses who have to deal with people at their worst.

If you’re reading this and you are a nurse at a hospital, I want you to know how much I appreciate the service you provide. Nurses provided excellent care to my wife when she was in the hospital in June, and the doctors who performed and the nurses who assisted in her surgery are the reason the surgery went well, and the nurses post-op are the reason her recovery went smoothly.

The nurses deserve the thanks. Not God.

Update: the person mentioned in the quote above passed away on March 30, 2012, a week after this blog post was published.

Politics

Rick Santorum is not electable

Posted on by Kenneth Ballard / 0 Comment

Rick Santorum seems to be the top contender to Mitt Romney in the current race for the Republican nomination. Gingrich is, thankfully, without a prayer in this race, and I certainly wish Ron Paul was doing quite better. But of the two front-runners, only Romney actually has a chance of beating Obama in November.

The reason is quite simple. Mitt Romney is more moderate, by far, than Rick Santorum. Santorum is way, way too far to the right on his political leanings. And as much as Santorum would like to make this campaign more about the current fiscal state of the nation and the coming debt crisis, Obama’s campaign and those supporting it will ensure Santorum’s message is clouded by his far-right social conservatism.

So why not Gingrich? Frankly he has way, way too many skeletons in his closet. As an example, how can Gingrich say he supports traditional marriage when he is currently on his third marriage and has had affairs in the past? And that’s only one example.

Aside from Romney, the only person currently still in the race that is practically untouchable is also someone the Republicans want to shun just as much as the Democrats: Ron Paul. For a long time, people on both sides tried to find something, anything on which they could attack him, and all they could get is some newsletters that were published two decades ago. That’s it. It’s why the media and conservatives jumped on it when they surfaced again.

Romney, Santorum and Gingrich, however, will provide much easier prey for Obama’s campaign.

Now Ron Paul is just as unelectable as Santorum, in my opinion, but definitely not for the same reasons. You see, Ron Paul isn’t afraid to tell the truth on a matter, something that, frankly, scares the living shit out of people. People don’t want to hear what he has to say, even though he is the only candidate who predicted our coming debt crisis decades ago and predicted the recession after the dotcom bubble exploded.

Ideologically, Ron Paul is untouchable. He can keep the argument focused on the economy.

So basically we’re left with Romney and Santorum. Of the two, Romney will withstand attacks by Obama better than Santorum because Romney doesn’t have much that Obama can attack. Romney’s been a bit of a flip-flopper, but what politician hasn’t? (Umm… Ron Paul.) Romney is a Mormon, something with which ideological Republicans might be uncomfortable, and that might be something Obama can attack as well, along with "RomneyCare".

But Santorum and his far-right, theocratic-style beliefs will be a non-stop treat to Obama and his supporters.

And if The Daily Beast’s John Avlon is correct, a Santorum nomination will end up with a loud thud as millions of independents flee to support Obama or a third party candidate and the GOP is defined by their theocratic nominee.

But as Avlon points out, if Romney is nominated and loses to Obama, they may blame it on the fact that Romney is more moderate and may instead drive the GOP further to the right, which will be their undoing. So basically the only thing right now that can save the GOP, aside from a Ron Paul presidency, is a Mitt Romney presidency. All other outcomes don’t appear to end well for the Republican Party as we currently know it.

Perhaps 2012 will be the wake-up call the Republican Party and hard-right Republicans desperately need.

Constitution

Cry, the Beloved Constitution: A rebuttal

Posted on by Kenneth Ballard / 0 Comment

When reading of the New York Times discussing the Constitution of the United States, I often expect that they will, in many ways, get it wrong. And thankfully a recent op-ed authored by J. Harvie Wilkinson, III, proved to be no disappointment.

What is mildly disappointing, however, is that Wilkinson is a judge. Not just any judge, but a Federal judge sitting on the bench of the United States Court of Appeals for the Fourth Circuit. He was appointed to the Federal bench in 1984 by President Reagan and confirmed by a divided Senate with a vote of 58-39.

He is also the author of the book Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Right to Self-Governance. I have not read the book and cannot recommend for or against it. I am not familiar with the Judge and his political leanings, if any, so my entire focus here will be just on the text of the article to which I am responding. One thing that is apparent from this piece is that the Judge is an advocate of judicial restraint.

The article in question is called “Cry, the Beloved Constitution” and was published March 12, 2012, on page A21 of the New York Times.

Judge Wilkinson does correctly state at the beginning that the interpretations and exercise of the Constitution by both liberals and conservatives – i.e. Democrats and Republicans, respectively – is certainly not within its language. Republicans have their sights most set on the Courts while Democrats seek to install new “rights” within the United States Code that have no basis in our Constitution, unless you take a very, very, very broad interpretation of the Ninth Amendment. Judge Wilkinson’s observation is certainly accurate and worth noting:

The result is a national jurisprudence whetted by political appetite, with our democratic values as the victims.

This was especially true with the jurisprudential landscape laid out in the 1930s with the Supreme Court’s over-expansive interpretations of the Commerce Clause and their effective rubber-stamping of FDR’s legislation.

He begins his article by responding to Republicans:

Conservatives increasingly bemoan Congress’s power to regulate interstate commerce, as illustrated by the debate over the Affordable Care Act’s requirement that individuals buy health insurance. They argue that Congress can only regulate activity, not inactivity, and so when it gets involved in a decision by a consumer to not purchase health care, it is going far beyond its reach.

If only it were that simple.

I agree, if only it were that simple. However this reduction of the Republicans’ view of the Commerce Clause is woefully incomplete. Republicans are correct that the Constitution does not grant the Federal government the ability to mandate anything, but instead provides the Federal government only regulatory power. Just as you cannot regulate the flow of water in a bucket, but you can a river or garden hose, the Federal government cannot regulate someone’s nonparticipation in a market segment, but its power to regulate only comes into play when that person chooses to participate in a market segment.

Now all of economics derives from two words: man acts. While inaction is the opposite of action, the decision to not act is an action. However that decision exists purely within the realm of a person’s mind and intentions and is outside the realm and purview of government regulation.

While you can put a stick into a bucket of standing water and stir it to get it moving, thus providing some regulation to the water’s movement, the Federal government is not granted the power to stir our economy with its legislative pen, only regulate those parts of our economy already moving.

A vibrant economic order requires some political predictability, and the prospect of judges’ striking down commercial regulation on ill-defined and subjective bases is a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.

Let’s take this in its two parts, starting with the first: “a vibrant economic order requires some political predictability”. This is very abundantly true. Any person who is familiar with economics can see the truth in this statement without having to exert much thought: fear of future government regulation can have an impact on business decisions today, including the decision to start a business.

But the second part isn’t accurate. It isn’t the prospect of judges striking down regulations that is a prescription for economic chaos, it is the prospect of Congress or one of the many Federal agencies enacting new regulations and restrictions that is such a prescription.

When some teenagers nearly die after drinking a caffeinated energy drink and a Senator talks about outright banning the product from store shelves nationwide, people become nervous about what will be banned next, and this influences decisions by the consumers who purchase products and the businesses that make existing products and devise future products. If there’s the prospect that years of product research and development, including market research, will be wasted and unrecoverable with the stroke of the legislative pen, businesses may instead decide against introducing a new product, and we are all worse off when that occurs.

[I]f courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.

It is impossible for a Court to read the Constitution in a way to make Congress ineffectual. The Constitution lays out specific, enumerated powers for Congress and Congress is not to do anything that goes beyond those powers. Again Congress is granted regulatory power, yet most of what Congress has done, including the aforementioned Patient Protection and Affordable Care Act of 2010, is unconstitutional.

Next the Judge turns to the Democrats.

[Liberals] have forsaken the textual and historical foundations of that document in favor of judicially decreed rights of autonomy. It is one thing to value those rights our cherished Bill of Rights sets forth. But to create rights from whole cloth is to turn one’s back on law.

It is difficult to escape the observation that the Ninth Amendment is the most ignored Amendment in the entirety of the Constitution: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” This is especially true on the part of Republicans, as the Ninth Amendment is quite inconvenient with regard to advancing their agenda, but it is also true of Democrats as well in many ways.

Obviously where the government is granted power, the Ninth Amendment must cede to that power. For example, any perceived or actual right of the people to be free from government regulation with regard to interstate commerce must cede to the power of Congress to regulate interstate commerce.

But where the Federal government exercises powers in excess of those granted in the Constitution, the Ninth Amendment is intended to be the language that gives the people the power to say the government has gone too far. Imagine in your mind that the Federal government is the Balrog of Moria and the Ninth Amendment is Gandalf standing on that stone bridge shouting “You shall not pass!” Similar concept, as the government always exercises its authority in violation of the rights of the people. It doesn’t matter what the government does, as it will always violate the rights of the people in the process. But the Constitution is the way the people have, through the ratifying conventions, ceded certain rights to the Federal government.

The Due Process Clause of the Fourteenth Amendment provides similar power to the people with regard to the States.

So while the Ninth Amendment seems to be the most ignored Amendment with regard to debating the Constitution, it is the most cited Amendment when lawsuits against the Federal and State governments are filed in Court. When the people cite the Ninth Amendment against the government, it is then the responsibility of the government to cede the stolen power to the people, or satisfactorily justify it from elsewhere in the Constitution.

[C]reating constitutional rights without foundation frays the community fabric and, with it, the very notion that the majority can enact into law some expression of shared values that make ours a society whose whole is more than the sum of its parts.

Yes and no. It depends in whole on what “rights” are being created out of whole cloth. If we’re talking about what I’ve previously termed “rights of the silver platter” (here), then certainly this has that ability. After all if you attempt to assert the people have a constitutional right to be lazy (they don’t, by the way), then this can and will undermine much of our society.

But society is nothing without the individual: autonomous individuals capable of acting on our own wills and desires. As such when the majority seek to restrict the ability of a person to act on their own wills and desires, that restriction must very much be justified, and saying “because we’re the majority and majority rules” doesn’t cut it.

Again where the government acts, it is always in violation of the rights of the people. As such the actions of the government must be such that the violation of those rights is as minimal as possible. So when the government requires people to purchase a license from the government to get married, the people can legitimately demand that such a requirement not be exercised in such a way as to restrict the ability of two consenting, contractually competent adults from marrying.

But when the government seeks to restrict the actions of an individual where the effect of those actions goes no further than that individual and has no impact upon another person, then those restrictions warrant extra scrutiny.

Society is nothing without the individual, and individuals are nothing without their individual rights.

I’ll close with the Judge Wilkinson’s closing paragraph, which satisfactorily sums up everything:

All factions owe their fellow citizens the hope and the prospect of democratic change, not the message that their views have been constitutionally condemned and their opponents’ views carved in the stone of our founding charter. Restraint has much to commend it as a judicial value, not least of which is that it extends the hand of tolerance and respect to those whose views we may not share, but whose citizenship we do share and whose love of family, community and country burns no less brightly than our own.

Casey Anthony/Trial by jury

The jury

Posted on by Kenneth Ballard / 0 Comment

It’s not often that I respond to a comment with a separate blog post. I’ve done it only a few times here. What prompts it is when I think that merely a comment in reply would be insufficient. So here I find myself revisiting Casey Anthony once again to respond to this comment on my last article on the case:

You seem to have developed the idea in your mind that people should listen to a “jury” about the evidence when, by their own admission, they did not even look at the evidence when they deliberated… How can anyone consider someone an authority on something who didn’t even look at that something? You are on very slippery logical ground when you do that.

In the aftermath of the Casey Anthony trial, there was without doubt a lot of people angry at the jury. Just read around on most any blog about the case and you’ll find comments questioning the intelligence of the jury and accusing them of ignoring the obvious, among comments and words that seem to only go downhill from there. And comments attacking the idea of a jury – not the jury in the Casey Anthony trial, but the entire jury system we enjoy in criminal courts today – were also pushed around by people, including Senator Mitch McConnell when he used the Casey Anthony trial as an example of why terrorists should not be tried in civilian courts:

We just found with the Caylee Anthony case how difficult it is to get a conviction in a U.S. court. I don’t think a foreigner is entitled to all the protection in the Bill of Rights. They should not be in U.S. courts and before military commissions.1Fox Nation. (2011, July 10). “Holder Wants to Try Terrorists in the Same Civilian Courts That Let Casey Anthony Free“.

Senator McConnell appears to be saying with this comment that juries cannot be trusted and that they must take a more reliable route to ensuring alleged terrorists are locked up for good. Am I the only one unsettled by the thought of an elected official denigrating one of the fundamental safeguards of our liberties? Indeed the above-quoted commenter gives the impression through the wording of his comment – “listen to a ‘jury'” – that juries cannot be trusted, and there is something very unsettling about that idea.

* * * * *

I have never said that a jury is an authority with regard to the evidence. All one has to do is look at how often convictions are overturned as a result of new evidence or wrongfully obtained evidence to see that juries can be wrong with their verdict. In fact I brought up such an example in my previous article on the Casey Anthony trial: the conviction of Master Sergeant Timothy Hennis that was vacated by an appellate court in favor of a new trial that resulted in an acquittal. Juries can be wrong. I do not deny this, nor does anyone at all familiar with the jury system. It is a well-known issue with the jury system.

And yet the jury system is what we still have, as imperfect as it is and can be, thanks to that pesky document called the Constitution of the United States, which provides for a right to a trial by jury in the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law…

This is a restatement of a similar requirement provided in Article III, Section 2:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed

Clearly the Drafters of the Constitution felt that even an imperfect jury was still sacred to the criminal trial process. Why is this? Why is it so better than the alternatives? Because the alternative is to have a full government tribunal for trying criminals. Or we could turn everything over to the court of public opinion… yikes! Or just let Nancy Grace decide.

Even an imperfect jury is still better than either of those alternatives, and I think even a government tribunal is far superior to the court of public opinion and Nancy Grace’s opinion, combined.

* * * * *

Juries are made up of people. People are not infallible. Thus juries, and by extension the jury system, is imperfect. The jury is, however, presumed incorrupt and unbiased.

A jury may well respond erroneously to a question of fact because their judgment has been clouded by emotion. The fact this occurs has worked quite well to the advantage of prosecutors and the disadvantage of many people. It is a known and oft-cited problem with juries. But then, that’s also why there’s an appeals process.

But the greater difficulty with regard to a jury verdict is that all of the evidence and testimony that is presented during a trial is reduced down to one simple phrase that is either “Guilty” or “Not guilty”2And possibly other options that may be available based on what the applicable laws allow. We cannot know if a verdict of “guilty” was returned by a jury who made that decision purely on emotion, the evidence, or some combination therein, regardless of what the individual jurors say after the fact.

If a jury acquits a defendant, we cannot really know why, but the why is irrelevant, as an acquittal by a jury cannot be vacated or overturned. Instead we’re all left with what is really the only conclusion implied by the verdict: the prosecution did not sufficiently prove their case.

* * * * *

Going back to the comment above, I don’t believe we “should” listen to the jury about the evidence. I believe we must listen to the jury. But I don’t believe any jury is an “authority” with regard to the evidence presented to them. Some people will not understand certain concepts regardless of how well you explain it. So why, then, must we listen to the jury?

It is quite simple: if we always ignore a jury when they return a verdict we don’t like, that can lead us to undermine the jury system and lose faith in the jury system. And if we start losing faith in the jury system, then we can be more easily convinced to give up our right to a jury trial. And if that were to occur, we lose one of the most important safeguards of our liberties.

In other words, we must listen to the jury to ensure we still have the jury to which to listen.

To be sure there will always be controversial jury verdicts, verdicts that will generate large amounts of public outrage. Juries will convict the innocent and acquit the guilty. It is a well-known risk.

But while a jury will always be fallible and imperfect, there is no alternative to which we should or can trust our liberties as history has shown that the jury is the best way to protect our liberties with regard to accusations by the government. As such we should avoid denigrating the entire jury system simply because one jury returns a verdict with which there might be public disagreement.

References[+]

Religion

Yes, it is also freedom FROM religion

Posted on by Kenneth Ballard / 0 Comment

One phrase that is quite common in the United States is simply this: “It’s freedom OF religion, not freedom FROM religion”. This is the typical sentiment whenever atheists try to assert the position of the Constitution with regard to government entanglement in religion.

Here’s a sentiment of mine: the Constitution doesn’t talk about establishing a religion, but the religious establishment.

Moving on…

Typically those who tout the “freedom OF religion” sentiment try to justify using the arm of the State to put on display things in line with a particular religious belief or set of beliefs. ‘Tis rather troubling how people feel the need to use the government as a vehicle for spreading their religion rather than doing it with their own expense of time and energy. And this includes the public schools.

I’ve already written in depth about the First Amendment and its restrictions regarding government and religion in great detail (here and here), so I invite you to give them a read. They are long, so consider yourself forewarned.

But let’s look at the both ideas – freedom of religion and freedom from religion – by looking at a complementary and related natural right: free speech.

It has often been said that the freedom of speech has several facets. And the right involves actually four rights: the right to express, right to withhold expressing, the right to seek out others’ expressions, and the right to avoid certain kinds of expressions. Let’s briefly discuss each of these before discussing how they relate to religion.

First, it’s obvious that you have the right to express your opinions, so long as in so doing that expression does not cause harm to another or foreseeably lead to harm to someone. There is a caveat: if you say something that harms another’s reputation, what you have said or published had better be demonstrably true, and you’d better be ready to defend it.

But then you’ve also got the right to seek out other opinions, but doing so cannot be compelled of you except in certain, limited but justifiable circumstances. Along with this is the right to avoid certain kinds of expression. This doesn’t mean you have the right to tell someone else they cannot express something. This doesn’t mean you can censor someone else. It means only that if you start to experience a kind of expression to which you do not want to be exposed, you have the right to escape that expression, to remove yourself from that expression’s audience.

This is why the notion of the captive audience holds so much weight in our system of law. A person is part of a captive audience when they are a member of that audience through compulsion. Students in a public elementary or secondary school are the classic example. When someone is in a captive audience, extra consideration is necessary with regard to the kind of expression to which that person is exposed, as they are not their of their own volition.

So how does this apply to religion? It fits quite well.

First you have the right to make various expressions in line with your religious beliefs, and you also have a right to withhold such expressions. And I have the right to seek out what you or others holding similar beliefs might have to say, and I have a right to avoid or escape said expressions if I don’t wish to experience them. For example if a church rents a billboard along my route of travel to work, I don’t have to continue following that route knowing the billboard is there. I can take a different route that avoids that billboard if I so desire. And I can plan a route throughout a city that avoids all churches if I desire (and have the extra money to spend on gas).

This is where atheists say that you cannot have freedom of religion without also having freedom from religion. For there to be true religious freedom, I must have the right and ability to escape any expressions related to your religious beliefs, and you must have the right and ability to escape any expressions of my beliefs.

But when the government speaks through its various acts, decisions and legislation, we are its captive audience. This is why the Constitution of the United States and the constitutions of the several States restrict how a government may speak, and specifically restricts government speech with regard to religion.

So when a display of the Ten Commandments is authorized on a courthouse, or a prayer banner is displayed in a public high school, the government is engaging in religious expression. And when the government engages in religious expression, it is no longer acting in the best interest of all individuals subject to that government’s jurisdiction.

This is why religious expression by a government is unconstitutional. We are all part of a captive audience with regard to the government. And when the government speaks, everyone is affected.

The freedom of religion includes the freedom from religion. One cannot have the right to express one’s own religious beliefs without having the complementary right to escape the religious expressions of others. Your right to express Christianity is dependent upon your right to escape the expressions of Islam and Judaism, and vice versa. This also means your right to express Christianity is dependent upon your right to escape any religious expression of the government. And the only way to escape religious expression by the government is by prohibiting religious expression by the government.

Make sense?

Debt

Resetting the clock on old debts

Posted on by Kenneth Ballard / 0 Comment

This time ABC News correspondent Elisabeth Leamy attempts to tackle the issue of old debts and a concept called “debt re-aging”. Is she spot on or should she have done more research?

Article: “Debt Re-aging Dangers: Use Caution When Contacted About Old Past-Due Bills”

First, what is “debt re-aging”? The “re-aging” part of the name is with regard to the statute of limitations, but I’m going to have to go into a little more legalese on this one, so please bear with me.

There are two kinds of injuries that are recognized by law: civil and criminal injuries. Now I’m not referring to someone physically injuring you. You see, with a credit card, you agree to pay off any balance or at least adhere to a minimum payment. Fail to do that, and the contract you signed provides for an immediate remedy: late fees, raising your interest rate, and so on.

When you fail to adhere to the terms of a contract, this creates an injury under the law. Civil injuries or civil wrongs are called “torts”. Their criminal counterparts are “crimes”. Are there crimes and torts that overlap? Yes, but that is beyond the scope of this article. Anyway in failing to adhere to the terms of a contract, the injury or tort is called “breach of contract”. The contract for a credit card typically stipulates immediate remedies of that injury.

Now what keeps credit card companies from just suing people who make slight violations to their contract? Well, in short, the law is what prevents it. First the parties to a contract do have an obligation to attempt to remedy a civil injury outside court. It is only when those attempts fail that the injured party may seek redress through the Court by filing a lawsuit.

But the law doesn’t allow credit card companies to do that until after they have “charged off” the account. This cannot occur until the account is at least 180 days past due.

Now every state has a set of statutes that specify a limit on how long a person has from the day of the onset of the injury to seek remedy through the Court. These laws are called statutes of limitations. In the case of credit card companies, the clock starts the day after the first due date at which you failed to pay. Making payments in the interim only resets the clock. This is what is known as “re-aging” the debt. Any payment you make on a debt resets the clock.

How long that clock lasts depends on the State in which you reside.

So what if a debt collector calls about a debt that is possibly beyond the statute of limitations? Here is where the advice of Elisabeth Leamy’s article goes south:

If a collector doesn’t tell you that a particular debt is time-barred — but you think that it might be — ask the collector if the debt is beyond the statute of limitations. If the collector answers your question, the law requires that his answer be truthful. Some collectors may decline to answer, however.

First, I want you to remember this simple rule: anything you say to a debt collector, in writing or over the phone, can and will be used against you in a Court of Law if the debt were to result in a lawsuit. This sounds like the Miranda rule, and it applies perfectly well to debt collections.

Never talk to a debt collector over the phone if you suspect the debt they are attempting to collect may be beyond the time limit. If you do, anything you say may be interpreted as acknowledging the debt, in which case you have just given them full legal power to collect by resetting the clock. So repeat after me: never talk to a debt collector over the phone if you suspect the debt they are attempting to collect may be beyond the statutory time limit. While it might sound smart to ask if the debt is beyond the statute of limitations – and Elisabeth is right in that the debt collector must answer truthfully – the debt collector may respond by saying that they do not know, which is a perfectly legitimate and legally permissible response because the person to whom you are speaking may not know.

But one thing to bear in mind is that many collections agents are skilled over the phone. They know how to take and keep control of a conversation, and they will say anything (legally permissible or not) to keep that control and corner you. During a conversation with a debt collector, you may reset the clock on the debt and not know it. Don’t give them that chance by avoiding the phone call at all.

When the debt collector calls, say this simple phrase and hang up: “Put the details in writing and send it to me in the mail.”

From the first phone call, the debt collector has 5 days to put the information about the debt in writing and mail it to you. If they do not do this, they cannot collect on the debt. From the day you receive that information, you have 30 days to exercise a right known as “debt validation”. I have written on this previously. In the debt validation letter, ask them to provide information on when the account went “past due”.

Now do you have an obligation to pay a debt that is beyond the statute of limitations? Morally, I would say yes, as you do owe the debt. Legally, however, you do not, so long as you don’t inadvertently reset the clock on it. And you avoid inadvertently resetting the clock by – say it with me – not talking to the debt collector on the phone.

But what did Elisabeth have to say? She says you have 3 options:

  • Pay nothing on the debt
  • Make a partial payment on the debt
  • Pay off the debt

Well those options are no-brainers, but let’s explore them.

Although the collector may not sue you to collect the debt, you still owe it. The collector can continue to contact you to try to collect, unless you send a letter to the collector demanding that communication stop. Not paying a debt may make it harder, or more expensive, to get credit, insurance, or other services because not paying may lower your credit rating.

Let’s take this last phrase first: not paying the statutorily-expired debt may negatively affect your credit. This is true only if you live in a State with a statute of limitations less than 7 years. After 7 years, this debt will not be on your credit report and thus will not affect your credit score or ability to obtain credit in the future.

But you can forego paying on the debt if you desire, basking in your legal immunity in the process. Just don’t move to a State with a longer statute of limitations or the debt collector may decide to try collecting again (assuming they’re not otherwise-legally barred from doing so).

In some states, if you pay any amount on a time-barred debt or even promise to pay, the debt is ‘revived.’ This means the clock resets and a new statute of limitations period begins. It also often means the collector can sue you to collect the full amount of the debt, which may include additional interest and fees.

All I can say about this paragraph is that Elisabeth is spot-on. And I’d say it’s in most States where making even a partial payment will reset the clock. Do not send a debt collector anything until the debt has been validated and be careful that you do not make any kind of statement that can be interpreted as acknowledging the debt as such a statement may also reset the clock.

Even though the collector may not be able to sue you, you may decide to pay off the debt. Some collectors may be willing to accept less than the amount you owe to settle the debt, either in one large payment or a series of small ones. Make sure you get a signed form or letter from the collector before you make any payment.

This is just common sense. You can certainly pay off any debt you owe and release yourself of any obligation to it, regardless of whether that obligation is legally enforceable. However if you are going to acknowledge the debt, thus resetting the clock, any negotiation should take place in writing. If you do negotiate over the phone, take careful notes and say you want to acknowledge the terms in writing before sending any kind of payment.

So while some of the advice Elisabeth gives in her article is flawed, the information she provides is pretty spot-on.