Tuesday, March 31, 2009

The "1-Ply" Law

First, “to save water,” because the government decided too much of it was literally being flushed down American toilets, low-flush commodes became the law of the land. One result, besides often inadequate waste disposal, was salvaging old “thrones” and a rash of toilet-smuggling from Canada.

Then, “to save energy,” the government decided that incandescent light bulbs must be replaced with compact fluorescents. One result, besides potential mercury poisoning when a compact flourescent breaks, is hoarding of incandescents.

About a year ago, Spokane, Washington, “to reduce water pollution,” banned dishwasher detergent made with phosphates. One result, besides dirty and germ-ridden dishes, has been an exodus to neighboring Idaho to purchase detergent that works.

Now, not content to interfere with our flushing, seeing, and dishwashing, there has been a leak out of Congress that it’s about to pass the “1-Ply” law.

There are two kinds of “bathroom tissue,” better known as “toilet paper”: 1-ply and 2-ply. As their names suggest, the former consists of one thin sheet, the latter two thin sheets (which obviously doubles the efficacy of the product.)

Apparently, “to save the environment” by preventing the felling of too many trees, which suck carbon dioxide and expel oxygen, beginning in 2010 Charmin and other purveyors of “bathroom tissue” will be forced to sell only 1-ply toilet paper.

While all the consequences of this government intrusion into personal hygiene can’t be foreseen, one is readily apparent: By itself, 1-Ply won’t do the job. And using twice as much will create other problems.

But veterans like me who’ve served in primitive places know what to do. In Korea, where real toilet paper was as scarce as a capable company commander, we used newspapers, especially the Stars and Stripes.

Here in the U. S. of A, there are better choices: the New York Times, the Los Angeles Times, and the Washington Post among others.

They’ll get the job done.

And think of the satisfaction.

Sunday, March 22, 2009

Obama's Judges

It begins!

The fight for the heart and soul of the Supreme Court of the United States began last week when Obama fired a warning shot across the bow of the Republican Senate minority.

Obama has nominated an Indiana political veteran, currently masquerading as a federal district judge, for a seat on the United States Court of Appeals for the Seventh Judicial Circuit.

His name is David Hamilton, formerly counsel to Democrat governor Evan Bayh, now an Indiana United States Senator who is the nominee’s rabbi.

Even though Hamilton had been a staunch ACLU apparatchik before political pull found him a seat on the United States District Court, Obama claimed that his nominee has a "long and impressive record of service and a history of handing down fair and judicious decisions." Indeed, the White House painted Hamilton as a "moderate"—thus moving the goal posts from left to right.

Others have a different view of what they call Hamilton’s "pretty clear leftist political record." Wendy Long of the Judicial Confirmation Network adverted to his ACLU work, asserting that Hamilton "appears to have made rulings that show his willingness to bend the law to reach outcomes favored by his ACLU allies, which are inconsistent with the proper role of a judge under our Constitution."

And where will the Republicans be on the Hamilton nomination, which is doubtless a trial balloon for the soon-to-be first Supreme Court vacancy?

Indiana’s Republican senator, Richard Lugar has been the first to fold: he promises to "enthusiastically support" the nomination—a crucially important endorsement for Hamilton because a judicial nominee, any nominee for that matter, needs the support of his home-state senators.

The Senate Club is yet again accommodating its own, and if the Lugar apostasy is a portent of Republican reaction to Obama’s judicial nominations—especially to the courts of appeal (where most of the federal appellate work is done, and surely to the Supreme Court—the Left-Democrats will sooner than later probably control all three branches of the federal government.

Then, the "Living Constitution "will be in full bloom, its noxious blossoms completing the job of poisoning our nation.

In this regard, a lengthy essay I wrote before the election bears repeating (see http://www.henrymarkholzer.citymax.com/obamas_supreme_court.html). It is reprinted below in its entirety.


Last week’s Supreme Court 5-4 decision in Boumediene v. Bush—holding that alien unlawful enemy combatants have a constitutional right to use habeas corpus in American federal courts to challenge their detention—came as no surprise to those of us who have watched the "Living Constitution" virus metastasize since that ideological disease first began to infect the judiciary during the Warren Court era.

Those who subscribe to "Living Constitution" ideology believe that the founding principles of this Nation are passé, that the Declaration of Independence’s ringing endorsement of limited government and individual rights is outdated, that the Constitution’s creation of a representative republic is from a long past moment in history, and that the Bill of Rights is not a restraint on government but rather a source of newly invented "rights."

The "Living Constitution’s" partisans’ high priest was the late Warren Court era Supreme Court Justice William J. Brennan, Jr. According to him, in a 1985 speech, the Constitution "embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure." (My emphasis.)

Brennan was saying that the Constitution, rather than delegating specific powers to the federal government (Articles I, II and III), respecting state sovereignty (Tenth Amendment), and recognizing the existence of enumerated (Amendments I-VIII) and unenumerated (Amendment IX) rights, instead embodies amorphous "aspirations." Whose aspirations, Brennan did not inform us.

But Brennan did tell us what those aspirations are: "social justice, brotherhood, and human dignity."

We’ve learned the hard way that by "social justice" Brennan meant that the Supreme Court would allow Minnesota to rewrite mortgage contracts to benefit defaulting farmers (Home Building & Loan Association v. Blaisdell). "Brotherhood" would permit law schools to racially discriminate in the name of diversity (Grutter v. Bolinger), and Roe v. Wade would foster murder of the unborn to protect privacy.

After his paean to "social justice, brotherhood, and human dignity," Brennan’s 1985 speech continued: "When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought. * * * But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. * * * Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized." (My emphasis.)

Let’s analyze Brennan’s startling statements piece by piece.

"The phrasing is broad and the limitations of its provisions are not clearly marked." Doubtless Brennan was referring, for example, to Article I “(The House of Representatives . . . shall have the sole Power of impeachment”), Article II (“The executive Power shall be vested in a President of the United States”), Article III (“The judicial Power of the United States, shall be vested in one supreme Court”), Article IV (“No new State shall be formed or erected within the Jurisdiction of any other State”), Article V (“No State, without its Consent, shall be deprived of its equal Suffrage in the Senate”), Article VI (“No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States and Article VII (“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States ratifying the Same”)—and of course in the Bill of Rights, for example, the First Amendment (“Congress shall make no law”). (My emphasis.)

If this "phrasing is broad”"and if these “"imitations . . . are not clearly marked," then nothing in the Constitution and Bill of Rights is—which is exactly what Brennanites want, as they worship their Living Constitution.

"When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought." Here, Brennan was wrong on two counts. Putting aside what "community" the judges are supposed to speak for (village, town, city, county, state, country, hemisphere, continent, UN, EC, NATO?), proper constitutional interpretation speaks for what the words say and what they meant at the time they were written, and to the men who wrote them. Nor are today’s justices supposed to speak "for themselves alone." Who cares what they think, compared to the Constitution’s words and their meaning?

"What do the words of the text mean in our time,”"Brennan asks about the Constitution. Thus, in the world of the "Living Constitution," the "in our time" requirement that the President be at least 35 years of age should really mean 60 because, after all, life spans are much longer today than in 1787. Or the words "[n]o state shall impair the obligation of contracts" should mean, "in our time," except when farmers need debt relief—as the Court held in Home Building & Loan Association v. Blaisdell.

"The genius of the Constitution," Brennan told us, "rests not in any static meaning it might have had . . . ." "Static," in Brennan’s context, is of course a pejorative term, suggesting that anything fixed and immutable is somehow undesirable—though Brennan would doubtless not see the First Amendment as undesirably static.

"In a world that is dead and gone . . . ." Putting aside the melodrama of this passage, if, as Brennan says, the world of the Framers is "dead and gone"—where government was limited, individual rights paramount, federalism understood, state sovereignty protected—that is all the more reason to now interpret the Constitution in accordance with the principles that ruled in those bygone days.

"But in the adaptability of its great principles . . . ." It is facially contradictory for Brennan in one breath to condemn "static meaning" and in the next to laud "great principles," because if principles are indeed great, like not bearing false witness, their strength is in being "static."

"To cope with current problems and current needs." Immediately after the Civil War, when the Fourteenth Amendment was adopted, there was no "current problem”"about some private land being burdened by racially restrictive covenants, and there was at that time no "current need" for Negroes to move into formerly white suburbs. However, such a problem/need did arise after World War II. Thus, according to Brennan, it was appropriate that the Equal Protection Clause, which was never intended to invalidate concededly valid private land contracts, should be employed to hold unconstitutional judicial enforcement of those covenants. Brennan should have asked the Japanese-Americans who were shipped off to internment camps after Pearl Harbor if they thought the litmus paper of constitutional interpretation should be "current problems and current needs." Or the dead American draftees who perished in Vietnam. Or, for that matter, Negro slaves on the day the Dred Scott decision came down.

"Our Constitution," Brennan concludes, "was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized."

Ah Ha! The "static meaning" that Brennan decried earlier in his speech was apparently not intended to be static after all.

Nor, apparently, was it intended that the clear text of the Bill of Rights should preserve the individual rights guaranteed by the Constitution’s first nine amendments.

In effect, Brennan would have us believe that the Constitution was a mere outline for a script yet to be written by judges about "new principles," which the Framers were apparently too dull to have "sufficiently recognized"—"new principles" like sterilizing imbeciles, outlawing capital punishment, inventing "prisoners’ rights," imposing racial quotas, murdering the unborn, restricting political speech, and much more.

William J. Brennan, Jr., like many of his colleagues then and now (today, think Justices Stevens, Kennedy, Souter, Ginsburg, Breyer), and countless other federal and state judges throughout the United States, are not just liberals, which would be bad enough. They are, philosophically, collectivists and statists who believe with the orthodoxy of zealots that "rights" are created by society and its Platonic guardians, the judges, and that through the exercise of government power utopian goals can be achieved without regard to constitutional principles or the moral code that underlay them at the Founding.

In short, Brennan and his ilk are utterly indifferent to the proper role of judges, and see themselves as uber-legislators imposing their personal policy preferences on the unwashed in the guise of constitutional interpretation.

Which bring us to the current election and presumptive Democrat Party nominee [and now President], Barack Obama.

Putting aside that Obama is plainly a white-hating, white-using radical, and probably a Marxist Elmer Gantry, it needs to be said that if the fate of the federal judiciary, let alone the Supreme Court, falls into his hands (especially with a compliant Senate), our Nation will be crippled in its domestic battle against socialism and our foreign war against Islamofascism.

This is not a charge that I make lightly, but rather one rooted in the words of Obama himself.

On July 17, 2007, Obama made a speech in Washington, D.C. to the country’s leading abortion-meisters, "Planned Parenthood." In the words of NBC reporter Carrie Dean, Obama not only "leveled harsh words at conservative Supreme Court justices," but "he offered his own intention to appoint justices with 'empathy'."

"Empathy," according to Webster’s New World Dictionary of the American Language, is "the projection of one’s own personality into the personality of another in order to understand him better; ability to share in another’s emotions or feelings."

Thus, we have been unmistakably warned that Obama will appoint Supreme Court justices who will not honestly interpret the Constitution, Bill of Rights, and Fourteenth Amendment—let alone on the basis of what they say and meant to those who wrote them—but who, instead, will project their own personalities into others to understand them better; justices who can share in those others’ emotions or feelings.

And who might Obama’s empathy-receivers be?

Obama himself told us in that same 2007 Planned Parenthood speech: "We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges." (My emphasis.)

It could not be clearer what this pretender to the presidency [now President] of the United States has admitted.

So much for the classical liberal philosophy that was at the founding’s core and in its fundamental documents. From now on, constitutional interpretation Obama-style is to be through the eyes of whom he sees as society’s alleged victims.

Obama’s confession drops Brennan’s "Living Constitutionalism" into yet a lower rung of hell. His confession reveals that while the Brennanites fed the "Living Constitution’s" voracious appetite in order to achieve the amorphous goals of "social justice, brotherhood, and human dignity," Obama will nurture the beast with what’s left of limited government and individual rights, all in the name of "empathy"—a code word for something much darker: sacrifice of constitutionalism to the needs of society’s perceived victims.

This perversion of America’s essence—individuals as supreme, with government as their servant—is Brennanism squared. While our Nation has been able to survive Brennanism—though with the recent Guantanamo decisions, especially Boumediene v. Bush [and other decisions since], who knows?—we will not be able to survive Obama-appointed Supreme Court justices.


The battle over those justices has now begun with the Hamilton nomination, and so far Republican Lugar is AWOL. We’ll soon see how many of his GOP colleagues—Specter, Stowe, Collins, McCain, Graham, Voinovich?—join him in deserting principle in return for pork, earmarks, fellowship and grandstanding.

Friday, March 20, 2009

Buckley's Heirs Attack Ayn Rand, Again

The credence, even respect, being given today to Ayn Rand's ideas, as exemplified by her novel Atlas Shrugged, was bound to outrage many conservatives, especially those theists at National Review who, following in the steps of its founder, disdained her because she was an atheist.

Beginning with William F. Buckley, Jr. assigning the Atlas review to the god-fearing, one-time traitor, ex-communist, and professional testifier Whittaker Chambers, National Review through its founder had nothing good to say about the author who argued for a moral--not religious or social!--basis for individual rights and capitalism. Indeed, even after her death, Buckley, in an alleged novel, took swipes at the then-deceased author who has done more for individual rights than the revered (by some) mystical supplicant William F. Buckley, Jr.

So it comes as no surprise that with Ayn Rand's name and her novel being front and center in today's discourse about how close America is coming to the altruist/collectivist/statist abyss, National Review would disinter the spirit of Buckley and attack her yet again.

An online "NRO Symposium" of March 20, 2009 entitled "Going Galt: Ayn Rand's books are booming--but what about her ideas?" presents "a distinguished group of contributors to discuss Rand's newfound poplularity."

"Newfound popularity," indeed! Rand's books have sold more than Buckley could ever have imagined for his tomes even were he in a mystical trance.

As to the "distinguished group," six of the nine contributors fell all over themselves to be snide, condescending, pompous, insulting. Not surprisingly, in the comments of one contributor, the stench of anti-Semitism can be detected.

Somewhere, William F. Buckley, Jr. may be smiling.

But Ayn Rand must be laughing--as her NR-denigrated ideas more and more permeate the culture, revealing the grave deficiencies in much conservative thought.

Saturday, March 14, 2009

Al Odah v. United States of America: The Judiciary’s Latest Nail in America’s Coffin

On March 6, 2009 a panel of the United States Court of Appeals for the District of Columbia Circuit rendered a decision in Al Odah v. United States of America—and dug yet deeper the grave into which American national security is being buried.

In the March 10, 2009 edition of National Review Online, NR Contributing Editor Andrew C. McCarthy has written a devastating critique of that decision, its implications, and its likely consequences: “The War is Over: Federal courts have just surrendered in the war against radical Islam.” (See http://article.nationalreview.com/?q=ZDQyYjEzMTg3ZDBjZTA4MzExNjU1MTE2MzkwYTRiMTc.)

Mr. McCarthy’s article is required reading for every American who wants to understand just how imperial the Imperial Judiciary has become—and how persistently and successfully it is usurping control of our national security, thus seriously undermining our nation’s ability to defend itself against those bent on our destruction.

“Discovery,” in both civil and criminal litigation, is the process by which each side shares with the other factual material relevant to the issues in the case. The usual tools of discovery in civil cases are depositions, written interrogatories, and requests for admissions. In criminal cases, most discovery consists of the prosecution informing the defense of constitutionally-required information, such as exculpatory evidence.

As McCarthy explains in “The War is Over,” al Odah was “a mind-numbing technical dispute over ‘discovery’ in litigation . . . . But the discovery in question is the most vital kind, namely, that of classified national-defense information. What is in dispute is how much sensitive intelligence we must share with enemies bent on annihilating Americans . . . .” In other words, “[a]t issue was: In a challenge to the military’s designation of someone as an enemy combatant, what disclosures of classified information must the government make to the combatant about its basis for concluding that he is one of the enemy?”

The answer of the Court of Appeals panel that made this abominable decision was, in effect, that potentially quite a lot must be shared! As McCarthy says, the court held that “the government must surrender anything in its file that might be helpful [i.e., “material”] to an individual combatant’s case” in a proceeding to determine his status. (My emphasis.)

And who decides “helpful”/”material”?

Why, a judge, of course.

Wait a minute!

Did the United States Court of Appeals for the District of Columbia Circuit rule that the government must relinquish to a federal trial judge its entire file on an enemy combatant—including, presumably, information about intelligence “sources” and “methods”—and that a life-tenured, politically unaccountable jurist will decide how much of it to turn over to confessed 9/11 mastermind Khalid Sheikh Mohammed and his co-terrorists?

Sadly, yes. That’s exactly the meaning of the al Odah decision, the roots of which were planted in the Supreme Court’s earlier Boumediene decision (about which I have written previously; see http://www.henrymarkholzer.citymax.com/boumediene_v_bush.html).

As Mr. McCarthy says, in the Boumediene decision “the U.S. Supreme Court ruled—against the weight of precedent, tradition, and common sense—that non-U.S. nationals, held by the military outside sovereign American territory (i.e., beyond the writ of American judges) as prisoners captured in a war authorized by Congress, are nevertheless vested with a constitutional right to challenge their detention as enemy combatants in our courts.”

And who was responsible for Boumediene? Associate Justice of the Supreme Court of the United States Anthony Kennedy. And who was responsible for Kennedy: President Ronald Reagan (who also gave us Sandra Day O’Connor.)

And who was responsible for al Odah?

In one sense, no one.

That’s because the opinion was per curiam—“By the court. A phrase used to distinguish an opinion of the whole court from an opinion written by any one judge” (Black’s Law Dictionary). Not one of the three members of the panel put their names to the opinion, let alone was there a dissent—not even by Judge Janice Rogers Brown, a darling of many conservatives (until now at least).

With Kennedy and four liberals on the Supreme Court, “conservatives” like Brown in the D.C. Circuit, Obama ruling (and appointing judges) from the White House, and Democrats controlling the Senate, Andrew C. McCarthy is likely correct: “The war is over, at least until the next 9/11.”

When that comes, it will be a loud wakeup call indeed.

We must not forget where the blame will lie.