The New Terrapin Gazette
Number 181 22 December, 2010
People who love soft methods and hate iniquity forget this; that reform consists in taking a bone from a dog. Philosophy will not do it.
Obamacare Is Another Battle In The War Over The Rights Of The Individual
Understanding the role and function of government-mandated health care involves a lot more than finding out how the bills will be paid. There is history behind this effort, and much of it involves the interpretation and abuse of the USA’s constitution. Jurisprudential issues dominate the discussion, and if you understand those issues, you can see the fundamental importance of the imposition of “socialized medicine.” The core of the matter is not health, the public good, or even easing the burden of people who have been devastated by illness or injury.
That’s a claim that will be disputed. An objective evaluation of the relevant legal issues and court decisions shows that it is rational and accurate, however.
The following survey will demonstrate the overall thrust of the US federal constitution and limn its enemies’ struggle to frustrate ethical governance.
No, don’t skip this item because you cannot bear slogging through tedious lawyer-speak! The facts and principles are clear. The fancy language is found only in the arguments of those who defend Obamacare. Those folks talk that way because they have to defy common sense, and that calls for language that confuses.
Here it all is, laid out for your closer inspection if you wish:
Can the feds mandate your participation in this health care system? For that matter, can any level of government make such a demand, and impose it on you?
When individuals challenge governmental authority, they may set themselves against either local (state, county, municipal) jurisdictions, or against the central government. The argument often revolves around what a person’s rights are, and whether government of whatever level is attempting to violate those rights. People generally believe that “it’s a free country” and that the first ten amendments to the federal constitution make that clear. (Those ten amendments are often called the Bill of Rights, which will be abbreviated here as BoR.)
Grim reality: the slaughterhouse cases
There are problems with this view of human rights, and they show up if you realize (with a little help from this newsletter) that the BoR’s restrictions on government are not what many people thought they were. Those ten amendments dealing with freedom of speech, press, religion and so on don’t apply across the board, and where they do apply, they are often ignored.
The states, for example, get a huge pass. Some decisions handed down by the US federal supreme court in 1873 made this clear. Collectively, the decisions are called the slaughterhouse cases. The most important one (that summarizes all of them) is outlined here and explained in greater detail here. The court decided that the thirteenth and fourteenth amendments to the federal constitution did not prevent the states from ignoring the BoR. That means that states could, if they wished, forbid free speech, censor the press, impose a state religion, and so on. The federal government could not do those things, but the states could.
The supreme court believed that amendments thirteen and fourteen were designed solely to protect black citizens from discrimination imposed by what was once the Confederate States of America. That’s crazy, but there it is — a huge mistake made almost one hundred forty years ago that did, and is still doing, tremendous harm.
This gross error in reasoning is one of two causes of all the problems with firearms legislation. The other was the parallel reasoning of the federal courts that states may restrict firearms ownership and usage as they see fit; that egregious decision allowed local governments to disarm the victims of “night riders” and the KKK. That remains an indelible stain on the history of the nation.
Clearly the second amendment was intended to apply to everyone, for, as an individual right, it is inviolate no matter where the person resides. But only with the recent (2008) Heller decision has the nation’s highest court affirmed that simple truth.
The commerce clause: Congress and the courts evade the BoR
It’s not just the state and local governments that can abuse you. Your rights, as expressed in the BoR, can be ignored by the federal government as well. The gimmick used by those who wish to control everybody is the commerce clause found in Article One, Section Eight of the federal constitution. This gives Congress the authority “…to regulate commerce…among the several states….”
What that means depends on whom you ask. Some have argued that if you grow corn for your own consumption and do not sell it, you are nevertheless engaging in interstate commerce, and can be regulated by the feds. Yes, that’s a fact, as you will see if you look into the matter (which you can do by following these links: here, but those of you outside the USA may have to use a proxy to view this page, and then here. Here’s a very good video. Do a Google search if you think those links are prejudicial).
The twisted logic is impossible to defend, but can be stated: if you grow a crop (corn, say) that is commonly traded across state lines, you are involved in interstate commerce. If you do not sell it, but use it all yourself, you are not buying corn from an interstate market; that has an impact on said market. Prices rise somewhat or fall somewhat, either because you have reduced the supply of corn (by not selling what you grow) or because you have increased the supply of it that is available at cost (that’s the corn you grew). Never mind the amounts of corn or money involved — even if they are infinitesimal and impossible to quantify, you are a player by virtue of having decided not to play.
If you are stupid enough to think that means that the fact you are not a gambler (you don’t go to casinos and bet) means that you are actually a gambler, then you understand. Everyone who is out is really in. Got that?
The commerce clause was a good idea at the time, but no one believes the Founding Fathers meant to produce anything as goofy as its contemporary misinterpretation. They wanted to be able to prevent commerce from getting bogged down by people they rightly perceived as meddlesome, greedy and bureaucratic-minded. That’s all.
Many years later, the commerce clause became the tool the feds used to insist that restaurants stop discriminating against black folks: the business uses electricity, or water, or paper napkins that come from out of state, and that’s interstate commerce, and therefore all the activities and policies of the restaurant can come under federal regulation — if Congress wishes. Noble cause, questionable means.
Those questionable means have been portrayed as sometimes excessive and frustrative of the rights of the individual as described by the BoR. Stung by the intervention, some folks have brought suit, claiming the BoR has been violated by an abusive federal government.
They soon discovered that they did not have a leg to stand on. As long as the commerce clause is so broadly interpreted, the federal government cannot be halted; the famous checks and balances simply do not work. Too, in the event that you are being abused by a corrupt state government (as happened in the slaughterhouse cases), the state was exempt from the controls imposed by the BoR, for the federal constitution constrained and contained only the feds. Either way, no matter what level of government is savaging you, you lose automatically and at once.
So the courts have tended to allow Congress to run amok, using the commerce clause to define and extend federal authority.
If the BoR is ineffective, the government is off the leash
This means that deciding not to enroll in federally-mandated health insurance is not an option for the individual. He cannot avoid federal regulation, for even when he withdraws from all genuine interstate commerce and simply makes a personal decision regarding the use of his funds, he is, according to existing court decisions, still a participant in that commerce.
Since no individual can avoid the implications of the commerce clause in any of his activities — even those that seem to avoid all possible links beyond the borders of his state — Congress can regulate anything and everything everybody does. Congress says, “Buy this, don’t buy that,” and you have to obey.
Sorry to be tiresome about it, but that fact bears repeating. Making free choices as an individual is not permitted, and Congress may intervene wherever and to whatever extent it wishes.
No, that’s not an exaggeration.
Obama’s view of the BoR and the role of the federal government
Unfortunately the current administration perceives the BoR as a list of “negative liberties” that do not provide the public with genuine benefits. Here’s the literal quote — with emphasis added by this newsletter — and here is where you can read the full text and hear the man say these words:
(The Warren court) didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf, and that hasn’t shifted and one of the, I think, tragedies of the civil rights movement was, um, because the civil rights movement became so court focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change.
Note the underlying mindset: protection from tyranny is not enough; government must do things “on your behalf;” the existing constitution must be escaped (we must “break free” from its constraints); if we do not shatter the restrictions holding the government back, we cannot enjoy the benefits government should give us. This is nothing less than a call for the acceptance of authoritarian, if not totalitarian, governance in pursuit of a better life. Make no mistake about it: the president is telling us to give up Liberty in order to qualify for material advantages.
That reveals his opinion of the intelligence of the voting public. He thinks the average person is stupid enough to submit to an authoritarian state in return for promises of gifts to come.
In the quote above, Obama specifies those gifts as coming from “redistribution.” That’s entirely another matter, of course, and beyond the scope of this discussion, but you might make a mental note: what Obama proposes is a puerile fantasy of class warfare in which the deserving settle scores by plundering the idle rich. That’s been a dream of revolutionaries for over two centuries, and the cartoon-like images still have the power to ensorcel.
Hope and change
Many authorities have been admitting tacitly that the slaughterhouse cases were improperly decided, and several decisions have led observers to believe that incorporation is to be expected. That term “incorporation” is defined as the imposition of the restrictions listed in the BoR on all levels of government. That process begins with the understanding that the express intent and purpose of the thirteenth, fourteenth and fifteenth amendments are to prevent the states from redefining human rights. Incorporation is presently incomplete.
That may come as a shock to some of you. You may have been led to believe that the states and Congress had to live with those noble words in the BoR that proclaim your Liberty. Well, it’s been a mockery for many decades, Pilgrims, and only now are the courts beginning to set things straight.
That ongoing development will disappoint those who insist that each state and each locality may suspend those parts of the federal constitution they find too permissive.
And Obamacare may accordingly be declared as unconstitutional as it actually is, for when the slaughterhouse cases no longer function as precedent (when incorporation prevails) and the commerce clause is correctly interpreted, Congress will have to face the fact that the rights of the individual are sovereign, absolute, and supreme. (There’s a good discussion of rights and the constitution here.) The twin reforms of incorporation and the correct interpretation of the commerce clause will strengthen each other. Neither federal nor state authoritarians will have the power they crave.
The implications are seismic, for once it is conceded that the BoR really does mean what it says and that the commerce clause has been distorted beyond all reason, legislators at all levels will lose the power to force you to sign up for Obamacare… or for anything like it. The demagoguery of the executive and legislative branches of the federal government will be drastically reduced.
For collectivist Utopians of all stripes, this is a horror beyond imagining. After all, Utopia is impossible without absolute control of the individual.
And the ruling Bicoastal Elite will be in deep shock: the inbred throwbacks of Flyover Country — those failures clinging to guns and religion — will actually be allowed to live their wretched lives pretty much as they please!
As you can see, for generations statist authoritarians have been making desperate attempts to render the BoR unenforceable.
It’s a war, and the struggle to impose Obamacare is a battle in it. The current fighting may appear to be over how to pay the cost of health care, or how to relieve suffering. In truth, however, the core of the conflict is a matter of ethics and political philosophy. The health care aspect is a pretext.
That leads to false perceptions and superficial understandings. For example, you might think of the current battle as Obama versus the medical/surgical elite. A few nutcases will see opposition to Obamacare as the last gasp of racism, while others will think they are leading a popular uprising under the slogan, “Eat the rich.”
The real nature of the clash is a truth the federal administration and the leaders of Congress do not want you to grasp.
This is a battle in a war to determine whether Liberty is to be permitted.
A Note On The Concept Of Human Rights
For some years, this newsletter has been insisting that only individuals have rights, and that the entire concept of human rights is philosophically indefensible. That self-contradictory view is overdue for an explanation. It is convenient to speak of human rights as if they existed, for we all know more or less what is intended; the enumeration of those rights is found in the US constitution, especially in its first ten amendments. If that is what you mean by “human rights,” then you might as well say that the document confers them upon all humans. That view differs from the statement of the Declaration of Independence that the Creator gave man rights.
What this newsletter means by “human rights” is a vision of the Enlightenment values that is summarized in the Constitution. That is where it originated, that is where you find it, and that is what it is — period. That’s good enough. Supernatural backing for the list is not needed.
Unfortunately that means that the list has no ultimate authority. It can be debated. Those who agree that human rights are whatever you think they are, and that there is no way of looking them up in an objective and indisputable reference, can insist that you do not have a right to free speech, for example. Thus are wars born.
The moral insights of the West illuminate human history, however, because the discovery of good and evil is possible. Atheist Sam Harris argues that spirituality is not necessarily linked to religion or faith, and that one can examine questions of ethics objectively and come to absolute conclusions. If he is right, then the notion that the evolution of the West has produced genuine progress in morality and jurisprudence is valid, true and seminal.
Yes, of course the discussion breaks down into a shouting match almost immediately. Muslims insist that the West denies the authority of the supernatural entity that decides man’s fate — while the Westerner tries vainly to explain that his understanding of the individual and society is more sophisticated and humane than the ravings of the mass murderer/paedophile/fraud Mohammed.
A parallel struggle goes on, meanwhile, between the “progressives” and their foes. Long-time readers of this publication know that “progressivism” is placed in quotes here because it is regressive. It harks back to nineteenth century notions that express a touchingly naive sentimentality about the eventual triumph of “scientific” socialism. There is just a ghost of a chance that some in the “progressive” camp may see the truth in that statement. Do read this lucid essay on the dilemma of the US “progressive” elite and the potential for an increase in its understanding of itself.
A quote selected from lucid commentary: “Modern presidents are never challenged from their base, always by the people who didn’t love them going in. You’re not supposed to get a serious primary challenge from the people who loved you. But that’s the talk of what may happen with Mr. Obama.” Right. The analysis found in the article addresses the concerns of everyone, be they “progressive,” centrist, “wingnut” or (heaven forbid) individualist.
If there’s anything this newsletter cherishes, it’s moral clarity. So read the linked piece, Pilgrims. It delivers. For instance, speaking of the Bahais, the author says, “You’d have to be a real bastard to be offended by them.” Seems so. Then there’s this: “The strikingly different treatments of these people by Iran and by Israel infuses the looming showdown between the Middle East’s two most powerful countries with even more moral clarity than it already had.”
Here’s a guy who looks at conspiracy theories that “explain” the September 11, 2001 disaster in the same way an immature man looks at women: he can’t get anywhere with them, so he brags about how jaded and selective he is. Like any poseur, he delivers himself of the occasional interesting factoid, so you might find his “insider” prattle diverting.
All right, you are fed up with the Tea Partiers, whom you consider racists and bottom-feeding morons. Understood. Now consider this: “…while our European cousins are out rioting in the street for more and more government spending, the one significant, genuinely popular movement afoot in American politics is demanding the opposite. No Washington poobah wants to get yelled at by rowdy constituents at a town-hall meeting back in the district. They really hate that.” (Source.) Like the Tea Party or not, you are going to have to deal with it (“…tea party activists across the country clearly took the repudiation of the pork-laden spending bill as its first major legislative victory…”, from here) and ignoring it or slandering it will not work.
Here is a textbook example of press bias. The linked article in the NY Times is a perfect example of how a news story can be written from a point of view, making it commentary, not news. Read it, and consider what the author(s) told you about the facts of the case, and how well they explained the reasoning of the senators who opposed the bill. You may find that the bias is occult, or at least partially so — but look again, and compare the ink spilled as the Times lets proponents and opponents speak. It’s not blatant, but it’s bias.
A genuine understanding of US politics requires that one address the sentiments as well as the polls and election results. Each faction has a distinct mood, mindset or ethos — a way of organizing its perceptions and responding to them emotionally — which reflects its underlying assumptions about reality. It’s fascinating to see how those perceptions and responses shift over time. There’s insightful commentary here for those interested in looking at what might be called “meta-politics.”
It’s a serious problem: thinking that jihadi bombers are incompetent is likely to get a lot of people killed by competent jihadi bombers. No, political correctness is no remedy for intellectual vacuity, and even Swedes can trip on trendy nonsense.
Here are some videos that are supposed to help you to understand Obama’s compromise with the GOP on tax legislation. Nobody agrees on nuthin’! — Note to Olbermann: the rich do not do nothing with their money. They don’t burn it, they don’t bury it in the garden, nor do they keep it out of circulation; your grasp of the fundamental facts of economics matches that of the average King Charles Spaniel.
Related: the Democrats are disgusted. You heard about that.
What have we here, traitors? No; it’s OK to make mistakes, change your mind, and be somewhat less than perfect. It’s even OK to disagree with everybody else. But these guys have gone too darn far, by golly!
Related: what’s going on? Well, it’s a clash of mindsets in which the governed and the elite face off, and its outcome will be about as important as anything can get.
Here’s a good documentary about Wikileaks, but the download speeds were lousy when this newsletter’s staff linked to it.
Katrina was W’s fault. Well, no, it was not; but that article of faith is strong enough, and convenient enough, that it will not be disposed of by facts. And why, you ask, is that? Because anything W says can’t be true, and, and, well, as everybody knows, if it was bad and W didn’t do it, then it did not happen.
Armed rebellion in Burma? Who knew?
Every so often, someone rediscovers the fact that Google is not exactly a good outfit. Welcome to reality….
Victor Hanson takes an unflinching look at rural central California, and finds the consequences of insane state and federal policies. For everyone in the USA, this is a must read. Californians can skip it, because there is no reasoning with the wet-brained and nostalgic western branch of the Bicoastal Elite, now is there? After all, Jerry is back. — Thanks to JY for a very depressing link.
There are warmers who admit that AGW cannot be controlled. These folks accept the fake science and then go on to show that countermeasures are silly. They agree that the measures promoted by the UN clowns, opportunistic politicians and Al Gore disciples will not work. It’s irrational of them not to reconsider the fundamentals; he who dismisses B should take another look at A.
A lot of ink has been spilled over this, but unnecessarily. Skip this link, because here is all that matters: that spur-of-the-moment “press briefing” starring The One and Slick was a breathtakingly stupid thing to do.
Holder, the bigot who must go, is trying to reinvent himself as the defender of the nation, and he talks a good game. His play, however, is dirty. Whether his tactics of distraction will work with the public as well as they worked with a major network remains to be seen.
This looks as if it might be a bombshell: it is claimed that a cause for autism has been found, and that the condition can be and already has been successfully treated.
If jihadis wanted to commit effective acts of terrorism, they would not necessarily kill anybody. They could drive the citizenry crazy instead. If they spent a few months doing research and then targeted a few dozen buildings, junctions and conduits for destruction with explosives, they could bring the nation to a halt. The disruption of commerce and the Keystone Kops antics of the authorities would have disastrous consequences. No one among the infidels would feel safe, well-served, or optimistic. Where the September 11, 2001 attacks temporarily unified the nation, carefully planned and conducted acts of sabotage would shatter the political, economic and social networks of the nation. Further, there would be no focus of attention to emerge as a symbol of the humiliating defeat; a tsunami of chaos has no center.
Here’s a good idea: “Technology hasn’t just made astronomy, biology and physics more efficient. It has let scientists do research they simply couldn’t do before.” An interesting article from the NY Times. That outfit does well with stuff like this.
Vanity Fair publishes an article that is probably supposed to put you off about the war in Afghanistan. It might. But the writer does a good job of describing a sniper’s job and attitude.
The masthead includes a quote from the works of John Jay Chapman.
The staff of The New Terrapin Gazette expresses its sincere gratitude to the many people who have gifted the world with Arch Linux, Emacs, Screen, and Firefox Namoroka.
Publisher: The Eagle Wing Palace of The Queen Chinee