Monthly Archives: June 2012

View 630 Friday, June 29, 2012

Madison and Chief Justice Roberts

The uproar continues over the strange ruling by Chief Justice Roberts that (1) the Obama Care Act cannot be sustained as Constitutional under the commerce clause, and (2) it remains constitutional because it doesn’t matter what Congress says it is imposing, it’s a tax and if it’s a tax it’s Constitutional, and (3) it is the duty of the SCOTUS to implement the will of Congress when that is possible. IF we call it a tax we can uphold the act. He adds, obiter dicta, that it is not the duty of the Supreme Court to protect the people from the consequences of their political choices.

He doesn’t really believe that latter, nor do any of us; but it is still very clear. The government derives its just powers from the consent of the governed, the Constitution provides the mechanisms by which the people show their will and consent, and the Court may or may not be wiser than the political branches of the government, but the Court is, in the final analysis, subservient to the political branches. It can hold out only so long, and the Court is at the ends of its powers.

Roberts has said, and he certainly has evidence to support the view, that the trend in the United States has been in the direction of increased government control over individual activities. I do not think he likes that. This direction is away from the traditional view of federal/state relations, and certainly not that of either the Framers or of those who adopted the Civil War Amendments and the reconstitution of these United States after the end of Reconstruction. The political commitments to the concept of federal republic were made then, and until recently pretty well prevailed; but we are now on a course toward nationalization of many issues, of which health care is a primary example. The Court can delay, but it cannot prevent the implementation of a new national consensus at odds with what the Court is supposed to enforce. The Court can stand in the doorway only so long. We now have a clear case in which the will of Congress and the President are in conflict with what a narrow majority of the Court believes. A very narrow majority.

This leads to a Constitutional crisis.

There was a period in US history somewhat similar to this. The issue in those days was slavery. The trend in the United States was against the South’s peculiar institution, but the plain language of the Constitution reflected a political compromise — one of several political compromises which made the Union possible – that made slavery legal. The trend was against slavery, and clearly over time the institution was doomed; either the Constitution would be amended, or one or another bloc of states would secede. The issue was stark, and the arguments were largely moral on the anti-slavery side, and pragmatic on the slaver side. Keeping the Union together was the business of the political branches, and people as diverse as John Quincy Adams, Henry Clay, Daniel Webster, and many others worked out the Missouri Compromise, and later the Compromise of 1850 with the goal of preserving the Union while limiting the extent of slavery.

This was a delicate matter, and there was much at stake. There were more complexities than most understood. There were southerners who hated slavery but were terrified of the consequences of liberation. There were northerners who did not want equal rights for blacks – some were involved in the founding of Liberia (capital, Monrovia), a new nation in Africa to which freed slaves could be exported.

And there was Chief Justice Taney, who ruled that the compromises were all null. Taney ruled that slaves and descendants of slavery could not become citizens. The political compromises were over, and would not be renewed.

Turn now to Madison, who told us in the Federalist Papers that the Constitution entrusted the liberties of the people to the whole of the population. Hamilton in another of the Papers pointed out the weakness of the courts, and that the political departments would always prevail. These spokesmen for the Constitution made it clear that over time the will of the people – whatever that means – would prevail, and no combination of Constitutional forces could prevent that. The purpose of the Constitution was openly stated more than once by the Framers to be the suppression of what is today known as plebiscitary democracy. The view of the Framers on this subject is best expressed by the often quoted dictum “There never was a democracy that did not commit suicide.”

Chief Justice Roberts has in effect said that the health care measure is somehow fundamental to these United States. It needs to be decided, and it cannot be decided by the Courts. It will also not be decided by deception: if it is going to be imposed let it be imposed by Congress and let it be seen that it is not a matter of ‘commerce’ at all. It is an imposition of will by the political authorities and it is imposed as a tax. If you do not care for it, you have the power to repeal it.

Roberts did not address, probably on purpose, the technical matter of the origin of the Obama Health Care Act. Did it originate in the House or the Senate? For if in the Senate, it is not constitutional on its face, since it is imposed as a tax, and revenue measure must originate there. But Roberts’ point is that the Court is utterly divided. The law is clearly necessary and proper according to four members of the Court. It is clearly fatally flawed according to four other members of the Court. The Constitution did not contemplate that one man should decide on the political future of the United States, and what course it ought to take in future. Ruling on a narrow technical detail would merely delay the crisis.

It is time, the Chief Justice said, for the will of the people to be expressed through the political departments. You should not try to make the Supreme Court the final arbitrator of such political matters. It has not the wisdom for that.

This election will now be held largely on the issue of Obama Care. If the President wins this will be seen as a vindication of that act and of the philosophy behind it. If the President fails of election the Act will be repealed, and there is an opportunity for the United States to turn back and forsake its former ways.

Now it is up to us. Mr. Roberts has said he cannot protect you from the consequences of your actions, and he has done so at a time and in a way that makes the question stark and clear. Whatever his intentions, this is what he has done, and I for one thank him for it.

View 630 Thursday, June 28, 2012

Former Speaker Pelosi famously told us that we would have to pass the Obama Health Care Bill to find out what’s in it. Today we found out some of it:

It’s the biggest tax increase in the history of the nation. You may get out of paying that tax if you have health insurance. If that sounds more like a fine and a mandate than a tax you are not alone in that observation, but the US Supreme Court has said otherwise. The Obama Health Care Act complete with the individual mandates – and complete with the requirements for employers to provide health care or pay fines – is a legitimate tax under the Constitution, by a 5-4 majority that includes the Chief Justice.

It also makes the November election the starkest choice in the history of the nation.

There are two important points here, one Constitutional and one political, but they are so intertwined that the political issue is key.

The Constitutional issue is that a 5-4 decision of the Court has pretty well given Congress the power to do anything it likes in the guise of taxes. The power to tax is the power to destroy, and now anything involving government expenditures can be taxed, which means that inaction can be taxed, which means – well, you get the idea.

The political issue is that more than 60% of the country hates the Obama Health Care Act; that a large number of people on Medicare hate the Obama Health Care Act; and that this is a stark issue, no compromises. The Court by a 5-4 decision has said that the Obama Health Care Act can be implemented, and the President has made it clear that if re-elected he will appoint new Justices who will cement this enormous expansion of Federal Power. The Republican Candidate Designate has said that on his first day in office he will take all possible action to repeal the Obama Health Care Act.

The issue couldn’t be more clear. Whatever one thinks of Romney, he is (1) against the Obama Health Care Act, and (2) in favor of restricting the power of the federal government on the grounds of State’s Rights.

The good news is that a majority of the country is in favor of the Republican stand on these issues. The good news is that the votes are out there.

The message is clear: this is a ground game. There is no need for persuasion. The election will turn on how many votes the two sides in this issue can get to the polls, or get to send in some kind of vote by mail. You may expect to see bombardments of retirement homes, as political operatives try to get them to vote by mail – and others will try to get them to vote twice and negate themselves. You will see a great deal of ferment in organizing to get out the vote.

A repeat of 2010 will start the Republic on the way to recovery. A 5-4 decision can be reversed. There may even be enough sentiment in the nation to reverse it with a Constitutional Amendment. We have the means to do this. What we have done we can aspire to.

This is a maximum effort mission.

This came yesterday from an old friend on Roberts’ stand on the Arizona decision:

Or, it belatedly occurs to me, perhaps they’ve gotten to Roberts, in which case he’d be writing the majority opinion to uphold Obamacare tomorrow. Given how they passed the health care bill in the first place, does either of us really think they’d hesitate to use a handle on him if they had it?

I am nonplussed by Roberts’ stand in both these issues. It seems inconsistent with his previous decisions on federal power. I have no explanation. Rush Limbaugh says that Roberts has become a typical member of the Washington Establishment which has encouraged him to ‘grow’ in office. ‘Growth’ in Washington always means to join the Iron Law growth of government power and support the ever increasing perks of office holders.

Or, it may be, that he is more Machiavellian than anyone supposed: he has made it clear that the courts cannot save the people of the United States from the inexorable march of government toward a European style Road to Serfdom. It is now up to the people of the United States to save themselves. They can do that in November, and begin a march toward transparency and subsidiarity. The issue is stark and the mission is clear.

Late breaking news: funds for Romney are rolling in since the publication of the decision. And the news media are suddenly noting that this ruling makes the 2012 election very close to being a repeat of the 2010 election: which, of course, was a disaster for Democrats.

This is a maximum effort mission.

There comes a time when you cannot rely on the Courts to uphold the principles of self government. There comes a time when those who favor self government have no choice: they have to take part in governing. Whether Machiavellian or blackmailed, Chief Justice Roberts has made it clear: the courts cannot save the government from going where its elected officials intend to take it. Courts can delay, they can nit-pick, they can drag their feet, but they cannot forever stop the inevitable march down the Road to Serfdom when that is the intent of the political departments. Of course this has always been clear. It was pretty well stated in the Federalist Papers.

The President is even now saying that it is now time to move forward. He means move down the Road to Serfdom. The Courts will not help us here. If we want transparency, subsidiarity, limited government, this is a turning point: we cannot rely on the courts. We must win elections.

The good news is that the November 2012 election can be won, and won big. The good news is that the issues are stark, and the Republican Candidate Designate has made the issue clear. The good news is that 2010 may well be a harbinger of the future.

This is a maximum effort mission.

View 630 Wednesday, June 27, 2012

I hear a ton of speculations about why the court found parts of the Arizona illegal aliens laws unconstitutional while keeping the “Your papers, please,” provision that was really the heart of the Arizona system. Arizona cannot, according to the USSC, make it a state crime for an illegal alien to hold a job; but it can aid the feds if it discovers illegals in the ordinary course of the law enforcement business. It’s all arcane legalese and there’s not much common sense in it, but that’s what happens when you turn self government over to experts. If you don’t like this, take back your government.

And the speculations on why Roberts joined in getting rid of parts of the Arizona law continue, although it seems obvious to me. If you believe in states’ rights you also believe in federal rights, and that means you need some way to sort out who gets what cases. If you don’t the evil of double jeopardy looms higher and higher. But that’s for another essay.

Some of the wild speculation is a form of Kremlinology practiced on the Court itself, and that’s usually a rather feckless thing to do. We’ll just have to wait to see if there was some horse trading on the Obamacare decision. It shouldn’t be long.

My old editor Paul Schindler is coming over for a hike and due in a few minutes so I’ll post this and the account I wrote about scanpst for now. More on other stuff later.

Windows 7 search sucks.

One reason I continue to use Windows 7 rather than convert everything to a Mac is that I do like Microsoft Office, in large part because after this many years, books, columns mail, blogs, taxes, and the rest I’m pretty well used to it, and I’ve got past going off exploring new computer stuff just for the fun of it.

One program I use is Outlook, which over the years has evolved into something that works pretty well, particularly in my case. I get about 1,600 spam messages a day. My ISP catches about half of them. Outlook junk mail filters catch another 200. I have crafted a set of rules that get a lot more. My problem is that I need to see press releases – some of them – and spammers have become clever about sanding larger and larger clocks of plain text from Shakespeare or other legitimate sources to swamp the spam filters, and they still get through, — which wouldn’t be so bad if they didn’t send a dozen or so of the same message. Every day. Anyway, for good or ill, I am stuck with Outlook, and Outlook uses pst files which grow ever larger and larger.

Eventually a pst file will be interrupted in some way and become corrupt, and the next time you run Outlook you will be told to run scanpst.exe. Since scanpst.exe is always installed with office that ought to be easy, and it would be if I left Office in the place where Microsoft puts it, but for good reasons I keep Outlook in a root directory called C:\Outlook. Recently I got the “run scanpst.exe” message – and I couldn’t find scanpst anywhere. I mentioned this in the blog, and thanks to readers I can now find it, but it makes for an interesting story.

I found C:\Programfiles(x86)\Microsoftoffice\office12\scanpst.exe, thanks to readers. It’s there, but Windows 7 search doesn’t find it. Even an extended search. Interestingly, when I did Search on this machine, it found plenty of documents that referenced scanpst.exe, but no such program: however, when I did an extended search to “Computer” which includes searches of mapped drives on networked machines, search found scanpst.exe all right – on another machine, Emily. Meanwhile search on Emily fails to find scanpst.exe.

Windows 7 has a very fast search system in the sense that if it’s going to find something it finds it pretty fast. It does that by building indices in background. But the search isn’t thorough, it’s hard to use if it doesn’t find something instantly, and in general it sucks compared to the Search program Windows had from at least windows 95 through Windows XP. One wonders if Microsoft programmers use their own operating system, or if they have some secret egrep function they can run? Because this Windows 7 search system sucks dead bunnies.

I also experimented with opening a command window and trying to run scanpst. It cannot find the file. Try cd\ to get to the root. Run scanpst. Can’t find it. Work my way down the directories, cd Program Files (x86) and run scanpst. Can’t find it. Eventually I get to C:\Programfiles(x86)\Microsoftoffice\office12 and try to run scanpst, and LO! it works. Clearly I need to play with the registry to add that to the path to be searched for commands, and clearly I don’t care enough to do that. I’ll live with this, but Microsoft really should pay some attention to the current search function. The simplest think it could do is add the old Search we all got used to. The new system is fine but sometimes we really need to find something that the current search doesn’t believe in.

Regarding that Office12, that’s Office 2007. If you have Office 2010 that will be in the Office14 directory. Windows 7 is really easy to use except that it isn’t, sometimes. Just like the Mac OS, but with Mac you can, as a last resort, get to a command window with real like UNIX and egrep. And I wonder if the Microsoft programmers don’t have some secret method of doing that since they clearly don’t use the standard Windows 7 search. And so far none of this is fixed in any version of Windows 8 I have seen, but it’s very early days on that.

Windows 7 search

It is a little irritating when the search indices don’t yield desired results. Command prompt and a very old DOS command still works well. Result close to instantaneous when run on my heavily abused laptop.

C:\>dir /s scanpst.exe

Volume in drive C has no label.

Volume Serial Number is AEE1-B8B9

Directory of C:\Program Files\Microsoft Office\Office15

04/08/2012 03:16 PM 40,088 SCANPST.EXE

1 File(s) 40,088 bytes

Regards,

Lee

Lee Coward

Which works just fine, and I had forgotten although I knew this at one time. Thanks!

View 630 Tuesday, June 26, 2012

The Supreme Court has upheld a fundamental right of Arizona to enforce Federal law on immigration, while holding that the making of that policy is the province of Congress. Arizona can’t make it a crime to hold a job if you are an illegal alien. It can ask your immigration status if you come to the attention of police by some other means. This is hard to quarrel with.

The Administration, in a fit of pique, is trying to criminalize Arizona’s enforcement of the law, and has set up hot lines for denouncing law enforcement officers. I wonder how long it will take the Tea Party to start looking for Federal officers to denounce. This weapon has more than one edge.

Meanwhile, Arizona no longer has any effective control of its borders according to the President. The Emperor spoke in haste, and will probably repent at some point. We can look for more interesting developments in Arizona and along its borders. We can also wonder what effect this will have on the legal immigrants who went through the rather onerous requirements to come here. Some of them have citizenship, won by hard work and dedication. Will they be inclined to vote for those who say that all that hard work and dedication was a waste of time? Not all immigrants can vote. although the President doesn’t seem entirely aware of that.

And the Decision on ObamaCare is coming soon.

The Things Decided at Vicksburg

You said…

"And the Supreme Court has spoken with an odd voice, claiming that the Constitution puts limits on the States that had Virginia understood would be a consequence of the Union, neither Virginia nor the Carolinas would have joined the Union. There would be no United States had the original signers understood that they were giving up some of the most basic fundamentals of sovereignty."

I submit that Ole "Honest Abe" and some 600,000 American casualties ended real state sovereignty some 150 years ago…except of course when part of Virginia seceded from its parent. The primary role of states now appears to be the implementation of unfunded federal mandates.

Had they realized in time joining the United States was a "one state, one vote, one time" choice several states would have chosen differently.

Charles Brumbelow

This raises a point that requires comment. Whether or not it was the intention of the writer, it says that the key question of the nature of the Union is over, having been settled by force of arms, and those who do not approve of the current distribution of power between Washington and the States should – what? Stop talking about it. Accept it. Or, if they are unhappy, plot bloody revolution? Neither seems an effective course of action. Nor does organizing a new secession movement seem very attractive.

Moreover, it assumes the very disputable notion that the issue was settled once and for all by Appomattox, and from then on we have had a uniform movement toward nationalism and away from transparency and subsidiarity; that we are doomed to stay on that road.

It isn’t true, of course. The impeachment of Andrew Johnson failed of conviction: even the Reconstruction Senate recoiled from that. And then came the Hayes Tilden election , in which Reconstruction was ended on condition that the Republican candidate became President, while Bedford Forrest disbanded the Klan. And even during the depths of the Great Depression followed by World War II many Federal schemes failed. There remains a legal tradition in the United States for strict construction of the Constitution. That tradition isn’t so apparent among Harvard Law graduates, but it exists.

But leave all that: the key question is , why concede that the question is settled? A lot of people don’t think so; and the recent history of the United States provides considerable evidence that even on the theory of a “living Constitution” to be interpreted along pragmatic lines, centralization doesn’t work very well. The very phrase “transparency and subsidiarity” as the guiding principle of government is not mine, but that of Jane Jacobs, hardly a conservative firebrand. On purely liberal pragmatic grounds, the evidence shows that centralization is not always the answer to social problems, and often is the cause of some of the worst of them. Yes, some decisions need to be national – but not all of them, and that is becoming pragmatically clear. It is, for instance, abundantly clear that Roe v. Wade was a drastic error on pragmatic grounds, and the proper way to deal with abortion rights was to leave it to the states. That has also the great merit of being the obvious constitutional course: abortion is not mentioned in the Constitution and it was illegal in every state that adopted the Constitution at the time that state entered the Union. There has been no Amendment to change that. What gives the federal government power over the question? And on pragmatic grounds this has been terribly divisive.

Appomattox settled some things. The Civil War Amendments were adopted and became part of the Constitution. Slavery was abolished, and good riddance. The Bill of Rights was, sort of, almost, incorporated into a national Bill of Rights to be applied to the States as well as to the Federal government, which was stable for generations until the Warren Court went mad in discovering fresh new rights in emanations and penumbras. The Warren Court decisions were mostly wrong. Some are irrevocable but not all. And the makeup of the Court is controlled by the President and 60 Senators. Ted Kennedy was able to Bork Judge Bork, and the Democrats have made the court appointments almost purely political, but that blood sport is not part of constitutional law. None of this is universally approved, and none of that is irreversible.

I do not concede that the key question — can a nation be a world power and remain a constitutional republic rather than become an empire – was settled by Reconstruction. I do not believe that it is wrong to remind the courts of that. And I do believe that it is vital that the friends of liberty not give up.

I am closing some Firefox tabs that I’ve kept open as reminders but which I probably won’t get to. This is a mixed bag, and not all of it will be of interest to all readers here, but some may be worth your time.

There is a long bit on McNamara and the Strategy of Technology http://nextbigfuture.com/2012/05/where-did-future-go-strategy-of.html which will be worth the attention of those interested in those subjects.

http://www.jerrypournelle.com/reports/jerryp/UFO.html is my view on flying saucers and UFO’s.

On D D Harriman and the space program: http://www.thespacereview.com/article/951/1

And a review of A Step Farther Out http://www.fourmilab.ch/fourmilog/archives/2012-06/001380.html