Friday, December 20, 2013

First Amendment or Free Market?

Just when I began to believe that many of the more prominent TV talking heads could not be more stupid, they did it again.

Regarding the current Duck flap (no pun intended).........

In a magazine interview, the Head Duck quoted scripture (in which he devoutly believes) on the subject of homosexuality. That was his right.

Many people were offended. That was their right.

They conveyed their displeasure to the Duck's employer, A&E Network. That was their right.

The employer fired Mr. Duck because of what he said and/or because of the complaints. That was its right.

Why, Greta and Bill (and many others) was it the Network's right? Because A&E is a private organization owned by private individuals.

That's the free market. If I own a bowling alley and insist my employees have the image of a bowling pin tattooed on their foreheads, they can take it or leave it.

Similarly, if Mr. A&E doesn't want his employees quoting scripture anywhere, disparaging homosexuals, or predicting the next Super Bowl's winner, the employees can take it or leave.

This is the free market, whose unofficial slogan should be, but sadly isn't, "take it or leave it."

Thus, the Duck Episode has nothing--nothing!!--to do with the First Amendment to the Constitution of the United State of America. To remind Greta VanSusteren, Bill O'Reilly, and hosts of their colleague hosts, the First Amendment begins "Congress shall make no law . . . ." And even though judicial sleight-of-hand has made the First Amendment's guarantees apply to the states, not yet in our statist-collectivist nation has that amendment been thought to assure that "A&E shall make no law . . . ."

Friday, November 8, 2013

Obama and Consciousness

In his syndicated column of November 7, 2013, the brilliant Charles Krauthammer has written of “Rhetoric v. Reality.”

Quoting The New York Times headline “Obama to campaign to ensure health law’s success,” Dr. Krauthammer asks, “Campaigning to make something work? How does that work. Presidential sweet talk persuades the nonfunctional Web portal to function?”

Obviously not.

Psychiatrist Krauthammer’s next sentence—“This odd belief that rhetoric trumps reality [my emphasis] leads to strange scenes”—is the theme of his essay. It is reinforced by the observation that Obama proponents don’t live “in the real world,” and by Krauthammer’s statement that the president and his minions entertain a “bizarre belief in the unlimited power of the speech.”

Putting aside that Dr. Kauthammer seems to be careful not to diagnose Obama and his followers as delusional, there is a more fundamental—and frightening—explanation of the president’s behavior, not just regarding Obamacare but more broadly much of what else he has done and not done.

President of the United States Barack Obama suffers from the ultimately fatal disease of Primacy of Consciousness.

For Barack Obama, the tree does not fall in the forest if he’s not there to see and hear it.

If he wants to believe, for whatever reason, Americans can keep their insurance and physicians, then they can—even if in the real world they can’t.

If he denies having said they could, he didn’t say that—even if in the real world he did.

There are too many other such examples, and in suffering from Primacy of Consciousness Obama necessarily rejects Primacy of Existence—or, one could say, he rejects reality.

The late Ayn Rand expressed the crucial distinction between the two and their centrality to living in the real world rather than in an amorphous never-never land:

The basic metaphysical issues that lies at the root of any system of philosophy [is] the primacy of existence or the primacy of consciousness.

The primacy of existence (of reality) is the axiom that existence exists, i.e., that the universe exists independent of consciousness (of any consciousness), that things are what they are, that they possess a specific nature, an identity. The epistemological corollary is the axiom that consciousness is the faculty of perceiving that which exists—and that man gains knowledge of reality by looking outward. The rejection of these axioms represents a reversal: the primacy of consciousness—the notion that the universe has no independent existence, that it is the product of a consciousness (either human or divine or both). The epistemological corollary is the notion that man gains knowledge of reality by looking inward (either at his own consciousness or at the revelations it receives from another, superior consciousness).

The source of this reversal is the inability or unwillingness fully to grasp the difference between one’s inner state and the outer world[1] (i.e., between the perceiver and the the perceived (thus blending consciousness and existence into one indeterminate package-deal). This crucial distinction is not given to man automatically; it has to be learned. It is implicit in any awareness, but it has to be grasped conceptually and held as an absolute.[2]

Despite Obama’s unwillingness or inability to recognize what has happened before his eyes, the private health insurance market has crashed in the real-world forest.

[1] My emphasis.
[2] “The Metaphysical Versus the Man-Made,” Philosophy: Who Needs It? (1982), 29.

Monday, August 19, 2013

Hanoi Jane strikes again

Apparently the Hollywood hypester producers of the new movie Butler have succeeded in drawing attention to their otherwise forgettable film by casting Hanoi Jane Fonda as Nancy Reagan. In recent publicity for the movie Fonda has been more aggressive than usual in sparring with her critics, going so far as to wear a "Hanoi Jane" T-shirt. Sort of "in your face" to the veterans and other who continue to deplore her treasonous conduct in North Vietnam during July 1972.

When Fonda published her autobiography several years ago she devoted little space to her pilgrimage to the Belly of the Communist Beast, nonetheless making yet another attempt to justify her illegal and immoral conduct.

As many of you know, Erika Holzer and I are co-authors of "Aid and Comfort": Jane Fonda in North Vietnam. Because of that, when Fonda's autobiography was published we were asked by Front Page Magazine to write a rebuttal to her excuses/rationalizations. Some eighteen pages later, in an essay entitled "Guilty as Charged" we had demolished everything she said.

For those who can't get enough of Hanoi Jane, the essay can be found at:

Friday, August 2, 2013

John McCain, revisited

As I watch John McCain each day make a fool of himself and endanger his country, I am reminded of what I wrote about him during the 2008 election.

Robert Louis Stevenson’s classic novel The Strange Case of Dr. Jekyll and Mr. Hyde, published in 1886, dramatizes what the author believed to be the duality of human nature.
Set during England’s Victorian Era, the story tells of respectable scientist Henry Jekyll whose experiments allow—eventually compel—him to become a completely different person, the murderous Mr. Hyde.
As the story progresses, Jekyll realizes that the Hyde part of the scientist’s dual personality is taking over, and Jekyll is “slowly losing hold of [his] original and better self, and becoming slowly incorporated with [his] second and worse [self].”
I thought of Stevenson’s story about dual personality when recently writing a critical article about Republican primary candidate John McCain—an article in which I pulled no punches.
It struck me then that there were telling differences between the John S. McCain, III of his pre-political period and the Senator McCain who now seems to have wrapped up the Republican presidential nomination.
The McCain of the earlier time, despite his apparent cavalier attitude about academics and propriety, was nonetheless a graduate of Annapolis and a Navy jet aircraft pilot.  He survived three plane crashes and an on-deck carrier accident that killed 132 sailors. McCain flew dangerous missions over North Vietnam, braving enemy SAM missiles—until one nailed him.  He survived ejection, almost drowning, near-fatal injuries, torture, and five-plus years of harsh incarceration.  Some six years were ripped out of his life, to which he returned partially crippled. 
Dr. Henry Jekyll would have been proud to have John McCain as a friend.
Then came politics.
McCain was elected to the House, and soon after to the Senate, where he has served for several terms.
Then, even though he caucused with the Republicans and considered himself a Conservative, Senator Edward Hyde emerged, not to commit murder but instead to undermine core Republican/Conservative principles.
Why Jekyll turned into Hyde—was it because of an adulatory witch’s brew served him by the media?—we’ll probably never know.
But we do know that McCain’s Dr. Jekyll side became less and less prominent (though some of it remained—e.g., abortion, earmarks, Iraq, Roberts/Alito,), and his Edward Hyde side became predominant (e.g., taxes, speech, immigration, POW/MIA—and more).
By now, the long list of McCain’s apostasy is well known—votes and conduct so deviating from the Republican/Conservative norm that Mr. Hyde would have been proud.  If McCain had not come as close to the Republican presidential nomination as he now is, we might never have seen much of Dr. Jekyll again, and been left with the rampaging Mr. Hyde.
But as of a few days ago, it appears that Dr. Jekyll is resurgent.
When Senator McCain addressed the CPAC meeting in Washington, D.C. last week, he frankly admitted that Edward Hyde had existed, but he made it clear that Dr. Jekyll was now ascendant:
  • I know the party needs to be united.
  • I need the support of dedicated conservatives.
  • I believe in small government, fiscal discipline, low taxes, a strong defense, judges who enforce, not make out laws.”
  • I am pro-life.
  • I support Second Amendment rights.
  • I backed the President’s decision to surge our forces in Iraq.
  • I will make it a highest priority to secure the border.
  • I intend to govern as a conservative.
  • I stand on my conservative convictions.
  • I won’t sign any bill containing an earmark.
  • I will not permit expansion of entitlement programs.
  • I intend to cut taxes, ending the Alternate Minimum Tax.
  • I will use free market solutions to the health care problem.
  • I will stay the course in Iraq.
  • I will make it clear to Iran that the cannot possess nuclear weapons.
  • I will take the offense against Islamic terrorism.
Although Mr. Hyde would never have committed himself to those statements, how can we be certain that he has been purged from Dr. Jekyll’s being?
We can’t. 
But we can give McCain the benefit of the doubt for a while, examining his words and scrutinizing his actions—watching and waiting, in the hope that John McCain does not, by his own actions, end up like Henry Jekyll.
That’s because The Strange Case of Dr. Jekyll and Mr. Hyde ends with the scientist writing a confession of his deeds, drinking his evil concoction, transforming himself into the monster Hyde and, as Hyde, committing suicide. 
While it was too late for Jekyll’s lawyer-friend and butler to save him by forcing their way into his laboratory, it is not too late for John McCain to save his presidential candidacy, perhaps our nation—and surely himself.
Some of us did give McCain the benefit of the doubt, but it was too late for him to save his candidacy then, let alone this nation. Let alone himself.
John McCain long ago abandoned Dr. Henry Jekyll. Today he lives, at least politically, as the twisted Edward Hyde: Immigration. Syria. And more. While we don't wish him the literal fate of Hyde, it is not too much to hope that in a moment of clarity McCain-as-Jekyll sees the political monster that McCain-as-Hyde has become, confesses to himself, and leaves the Washington stage.

There is no lawyer-judge or butler to save him.

Thursday, August 1, 2013

Bobby Kennedy, engorgement of the Commerce Clause, and destruction of private property

On August 1, 2013 at the site, Ann Coulter rightly took Mr. Cable TV news, Bill Reilly, to the woodshed for a recent statement he made about the former Attorney General of the United States, United States Senator, and candidate for the presidency, Robert F. Kennedy. Coulter quotes O’Reilly as saying that RFK was “the guy who was really concerned about African-Americans . . . .” (My emphasis.)

Coulter devastates the O’Reilly-propagated mythology, unmasking his ignorance of the facts and exposing the Kennedy brothers as the scheming politicians they were, pandering to the worst political racists seen in the Twentieth Century.

What is not well known about RFK, however, is how as Attorney General of the United States he used the United States’ Constitution’s Commerce Clause to violate the property rights of uncountable citizens of this country then and now.

The following (in courier font) is a lengthy excerpt from my recent book The American Constitution and Ayn Rand’s “Inner Contradiction.” 

In 1964, . . . Congress and the Supreme Court teamed up to use the Commerce Clause as an engine of moral righteousness. [Mr. O’Reilly’s hero, Robert F. Kennedy was the midwife for the birth of this pernicious engorgement of the Commerce Clause.]

The Heart of Atlanta Motel—a privately owned, local establishment—had 216 rooms available to transient guests. Accessible to two interstate highways, the motel solicited business through national advertising and some fifty billboards and highway signs throughout Georgia. The motel served conventioneers from outside Georgia, and about 75 percent of its registered guests were from outside the state. The Heart of Atlanta Motel, however, was physically within the State of Georgia.

Ollie’s Barbecue was a privately owned restaurant in Birmingham, Alabama, catering to a family and white-collar trade, specializing in barbecued meats and homemade pies. It had a seating capacity of 220 and was located on an Alabama state highway eleven blocks from an interstate. Bus stations and a railroad were not far away. Ollie’s Barbecue purchased about half of its food from a local supplier who, in turn, procured it from outside Alabama. Ollie’s Barbecue, however, was physically within the State of Alabama.

Both Heart of Atlanta Motel and Ollie’s Barbecue had inflexible policies against accommodating Negroes, the establishments’ owners believing that because the businesses belonged to them, they could indulge their racist attitudes and decline to serve whomever they pleased.

For many years preceding the civil rights movement of the sixties a large number of people in the United States, Northerners and Southerners alike, rightly considered racial discrimination ignorant, vile, immoral, and un-American. This attitude included racism not only in the public sector, as reflected by such policies as the South’s Jim Crow laws, but in the private sector as well, where it was not uncommon to find even Northern universities enforcing racial quotas against Negroes and even Jews.

Following World War II, gains started to be made against official racial discrimination at the federal, state, and local levels, and the Supreme Court’s landmark 1954 school desegregation decision in Brown v. Board of Education was the spark that ignited the eventually successful organized civil rights movement.

But not everything that movement spawned was legitimate, as the Heart of Atlanta and Katzenbach (Ollie’s Barbecue) cases prove.

Brown v. Board of Education had invoked the Equal Protection Clause of the Fourteenth Amendment—“No State[[i]] shall . . . deny to any person within its jurisdiction the equal protection of the laws” (my emphasis)—against official, government racial discrimination. 

But that wasn’t good enough for some people, who had no difficulty ignoring the crucial distinction between public and private discriminatory conduct. It wasn’t enough for them—rightly—to attack government racial discrimination. They insisted on prohibiting and punishing also the private racially discriminatory choices made by all the Heart of Atlanta Motel– and Ollie’s Barbecue–type establishments throughout the United States.

This public-private dichotomy is of utmost importance generally, and all the more so when racial discrimination is involved. It’s axiomatic that government, at all levels, must not discriminate racially. However, as irrational and immoral as private racial discrimination is, the Constitution does not prohibit it. No more than it bars gigolos from marrying spinsters for their money, parental indifference to their children’s spiritual needs, or religious bigotry. Indeed, the very nature of a free country, embodied in its Constitution, distinguishes between public and private morality.

As much as victims of racial discrimination had a constitutional right to nondiscriminatory treatment by their government, and a moral right to it from other individuals, those rights were not the same. To attempt a synthesis of the two—to hold that the Constitution required private individuals to eschew racial prejudice—was, in effect, to make government the arbiter of private morality. It was also to erase the difference between public and private conduct, to compel some people to fulfill the aspirations of others (however legitimate) and, in so doing, to ignore the fact that it is a contradiction to try vindicating supposed “rights” by violating the actual rights of others. Let alone to sacrifice the private values and choices of some to the collective’s moral philosophy—let alone by applying the compulsive force of statist government.

None of these distinctions, however, or anything else, prevented some militant antidiscrimination forces from attempting to convert Negroes’ moral rights into their constitutional rights concerning the use of other people’s private property.

How could they accomplish that?

Since the antidiscrimination forces couldn’t use the Fourteenth Amendment against the motel and restaurant (no state was denying equal protection or due process), they tried another tactic. Instead of relying on the Constitution, they sought to enact a federal statute.

Thus, in the early sixties a broad-based federal Civil Rights Act was proposed. It was to be based on not the Fourteenth “state action” Amendment, but on an entirely different constitutional provision, the Commerce Clause.

One section of the proposed act was intended to prohibit private racial discrimination in a wide range of so-called public accommodations. Motels and restaurants, for example.

Although the bill had many congressional supporters, there were serious reservations about whether Congress could legitimately reach the private racially discriminatory practices of local business establishments. Senate hearings in 1963 spotlighted the problem:

Attorney General [Robert] Kennedy: We base this [proposed legislation] on the commerce clause.
Senator [Almer] Monroney: . . . many of us are worried about the use the interstate commerce clause will have on matters which have been for more than 170 years thought to be within the realm of local control under our dual system of State and Federal government [federalism].
Senator Monroney: I strongly doubt we can stretch the interstate commerce clause that far . . . .
Senator Monroney: If the court decisions . . . mean that a business, no matter how intrastate in its nature, comes under the interstate commerce clause, then we can legislate for other businesses in other fields in addition to the discrimination legislation that is asked for here.
Attorney General Kennedy: If the establishment is covered by the commerce clause, then you can regulate; that is correct . . . .
Senator [Strom] Thurmond: Mr. Attorney General, isn’t it true that all of the Acts of Congress based on the commerce clause . . . were primarily designed to regulate economic affairs of life and that the basic purpose of this bill is to regulate moral and social affairs?
Attorney General Kennedy: . . . I think that the discrimination that is taking place at the present time is having a very adverse effect on our economy. 
Even though Kennedy was trying to invoke the Commerce Clause as the justification for the “public accommodations” section of the Act, he and the senators knew better:
Attorney General Kennedy: Senator, I think that there is an injustice that needs to be remedied. We have to find the tools with which to remedy that injustice . . . .
Senator [John Sherman] Cooper: I do not suppose that anyone would seriously contend that the administration is proposing legislation, or the Congress is considering legislation, because it has suddenly determined, after all these years, that segregation is a burden on interstate commerce. We are considering legislation because we believe, as the great majority of people in our country believe, that all citizens have an equal right to have access to goods, services, and facilities which are held out to be available for public use and patronage.
Senator [John] Pastore: I believe in this bill because I believe in the dignity of man, not because it impedes our commerce. I don’t think any man has the right to say to another man, you can’t eat in my restaurant because you have a dark skin; no matter how clean you are, you can’t eat in my restaurant. That deprives a man of his full stature as an American citizen. That shocks me. That hurts me. And that is the reason why I want to vote for this law. Now it might well be that I can effect the same remedy through the commerce clause. But I like to feel that what we are talking about is a moral issue, an issue that involves the morality of this great country of ours.[ii] (My emphasis.) 
This scheme of curing the moral failings of private citizens, by an even more tortured interpretation of the Commerce Clause than already existed under the M’Culloch-Gibbons-Wickard axis of cases, found its way into a Senate Hearing Report:

The primary purpose of . . . [the “public accommodations” section of the Civil Rights Act], then, is to solve this problem, the deprivation of personal dignity that surely accompanies denials of equal access to public establishments. Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color. (My emphasis.)

This was, of course, a confession that the Commerce Clause was being stretched beyond any legitimate meaning, which was not a secret to most members of Congress. Indeed, they were not the only ones having serious reservations about extending federal Commerce Clause power so far as to control the private racial choices made by local business establishments. One of America’s most distinguished constitutional law authorities, Professor Gerald Gunther, informed the Department of Justice, unequivocally, that use of the Commerce Clause to bar private racial discrimination in local places of “public accommodation” would be unquestionably unconstitutional:

The commerce clause “hook” has been put to some rather strained uses in the past, I know; but the substantive content of the commerce clause would have to be drained beyond any point yet reached to justify the simplistic argument that all intrastate activity may be subjected to any kind of national regulation merely because some formal crossing of an interstate boundary once took place . . . . The aim of the proposed antidiscrimination legislation, I take it, is quite unrelated to any concern with national commerce in any substantive sense. It would, I think, pervert the meaning and purpose of the commerce clause to invoke it as the basis for this legislation.[iii]

Despite the reservations of many knowledgeable people, the Civil Rights Act of 1964 was enacted, resting on the power granted to Congress in the Commerce Clause of Article I, section 8. Soon the constitutionality of the Act’s “public accommodations” section was before the Supreme Court of the United States.

The question for the Court in Heart of Atlanta and Katzenbach was the same: Did Congress exceed its constitutionally delegated powers under the Commerce Clause when it compelled the private owners of local businesses to serve customers whom they declined to serve for racially motivated reasons?

With the ghosts of John Marshall and Robert Jackson looking over their shoulders, the nine Justices of the Warren Court unanimously upheld the “public accommodations” section of the Act as a constitutionally acceptable exercise of Congress’s power under the Commerce Clause.

To reach that result, the Court relied on earlier cases in which it had allowed Congress to regulate such aspects of business as the sale of products, wages and hours, labor relations, crop control, and more—all because those aspects had some connection, no matter how tenuous, with interstate commerce. 

Those precedents, together with the motel’s and restaurant’s albeit tenuous relationships with interstate commerce—through the former’s customers and the latter’s food purchases—were deemed sufficient by the Court to allow Congress to impose the Act’s “public accommodations” prohibition on the two privately owned local businesses. The Court’s rationale in both Heart of Atlanta and Katzenbach, though lengthy, speaks for itself:

While the Act as adopted carried no congressional findings the record congressional record of its passage through each house is replete with evidence of the burdens that discrimination by race or color places upon interstate commerce. * * * This testimony included the fact that our people have become increasingly mobile with millions of people of all races traveling from State to State; that Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same; that often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight . . . and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook which was itself “dramatic testimony to the difficulties” Negroes encounter in travel. * * * 
These exclusionary practices were found to be nationwide, the Under Secretary of Commerce testifying that there is “no question that this discrimination in the North still exists to a large degree” and in the West and Midwest as well. * * * 

This testimony indicated a qualitative as well as quantitative effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler’s pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community. * * * 

This was the conclusion not only of the Under Secretary of Commerce but also of the Administrator of the Federal Aviation Agency who wrote the Chairman of the Senate Commerce Committee that it was his “belief that air commerce is adversely affected by the denial to a substantial segment of the traveling public of adequate and desegregated public accommodations.” We shall not burden this opinion with further details since the voluminous testimony presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel. (Heart of Atlanta Motel, Inc. v. United States)
In Katzenbach v. McClung, the Court stated that Article I, s 8, cl. 3, confers upon Congress the power “to regulate Commerce * * * among the several States” and Clause 18 of the same Article grants it the power to make “all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” * * * This grant, as we have pointed out in Heart of Atlanta Motel ”extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.”
* * *
[Even if Ollie’s Barbecue] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” * * * [Here, the Court cited Wickard v. Filburn.] The activities that are beyond the reach of Congress are “those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.” [Here, the Court cited Gibbons v. Ogden.] This rule is as good today as it was when Chief Justice Marshall laid it down almost a century and a half ago.
* * *
The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude. We find it in no violation of any express limitations of the Constitution and we therefore declare it valid. (My emphasis throughout.)

     In sum, because Negroes were wrongly, indeed immorally,    discriminated against by local, private, non-governmental businesses that had tenuous connections with interstate commerce, and because Congress wanted to rectify that situation as a moral imperative, the federal legislature justified “public accommodations” legislation on the basis of the Commerce Clause—even though United States senators, the attorney general of the United States, and eminent constitutional law scholars, let alone legal academics and practitioners, knew very well that the clause was never intended for that purpose and to use it to rectify a moral wrong was patently unconstitutional.

Even worse, if that’s possible, is that the Supreme Court of the United States went along with the charade, building on Chief Justice Marshall’s opinions in M’Culloch and Gibbons, Jackson’s opinion in Wickard, and like opinions by other justices in the 150 years between McCulloch and Heart of Atlanta/Katzenbach.

And, ironically, all the players did so in the name of holier-than-thou” “morality.”

Heart of Atlanta and Katzenbach raise a profoundly important question: If a core founding principle of this nation is the republican institution of federalism—as reflected in the delegation of enumerated powers to Congress and the Tenth Amendment’s reservation of power to the states and its people—are there any limits to the statutory reach of the Commerce Clause power when Congress wants to employ it to intervene in matters of profoundly personal choice, using the clause as a tool to sacrifice some people to the needs of others?
Sadly, the answer is “no.”[iv]

And so we see what Bill O’Reilly’s hero helped to created: One of the worst deprivations of private property in American history, all in the name of collectivist “morality” with not a nod to the individual rights of property owners.

[i] Because the Fourteenth Amendment did not reach federal action, in a companion case to Brown involving racial segregation in District of Columbia public schools the Supreme Court ruled that the Due Process Clause of the Fifth Amendment, which applied to the federal government, possessed “equal protection content.”
[ii] Hearings before the Senate Committee on Commerce on S. 1732, 88th Cong. 1st Sess., parts 1 and 2.
[iii] See Gerald Gunther, Constitutional Cases and Materials, 10th ed., p. 203. It’s worth noting that neither the senators nor Professor Gunther objected to the “public accommodations” provision of the proposed Civil Rights Act as such. It was fine with them that private businesses operating locally could be required by the federal Congress to relinquish their racially motivated choices. As we’ve seen, the opposition was limited not to the principle at stake, but rather to the constitutional basis for the prohibition of private choice, preferring not the Commerce Clause but rather the Fourteenth Amendment (which could not have applied because of its state-action requirement).
[iv] Justice William O. Douglas concurred in Katzenbach v. McClung, confessing that for him there were no limits of any kind on the scope of the Commerce Clause—not since Congress, according to Douglas, possesses the “power to regulate commerce in the interests of human rights” (my emphasis). How far that power could extend is limited only by one’s imagination, and by every real and supposed moral and other wrong afflicting our nation.

Wednesday, June 12, 2013

Edward Snowden: Treason or Not?

There is much talk today about whether Edward Snowden, the man who exposed the NSA electronic surveillance program, is guilty of treason.

As glib, and understandable, as those statements are, only a jury can decide whether he--or, for that matter, Jane Fonda-- is guilty of treason. The best, and fastest, explanation I can give of this is found in an article I wrote several years ago. Bracketed material has been added today.


By now, few people are unaware that Representatives Jim McDermott (D-Wash), Mike Thompson (D-Cal), and David Bonior (D-Mich) recently made a pilgrimage to Saddam Hussein’s Iraq. There, they toured, posed for pictures, and schmoozed with Iraqi officials. And while in Iraq, McDermott made critical comments about the United States and said he’d trust Saddam Hussein before he’d trust his own president, George W. Bush.

Understandably, a firestorm erupted – especially on the political right. Predictably, there have been calls to charge the three Baghdad Boys with treason – analogizing their conduct to Jane Fonda’s during the Vietnam war. However, for the very reasons my co-author [Erika Holzer] and I concluded in our . . . "Aid and Comfort": Jane Fonda in North Vietnam (McFarland & Co.) that Fonda was indictable and convictable for treason, the Baghdad Boys are not.

There are three crimes expressly mentioned in the Constitution, only one of which is actually defined. Article I, Section 8, gives Congress power to punish counterfeiting, and to define and punish piracy; neither is actually defined. However, Article III, Section 3, provides that: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

As explained in "Aid and Comfort"(, the Supreme Court of the United States, has interpreted the treason section to require four elements for indictment and conviction: (1) an intent to betray the United States, (2) an overt act, (3) proved by two witnesses, (4) providing aid and comfort."

In Jane Fonda’s case, she traveled to North Vietnam during hostilities, made broadcasts (tapes of which were relentlessly played to our POWs), held press conferences, provided photo ops for the Communists, attacked the United States and its leaders, exploited American prisoners of war, fraternized with North Vietnamese military and civilian leaders — and was thanked for her efforts by grateful, top level Communist leaders. This is why "Aid and Comfort" concludes that, given the law of treason and given Fonda’s conduct, there was more than sufficient evidence to support an indictment and a conviction for treason.

It is understandable that people are equating what the three Congressmen did in Iraq with what Jane Fonda did in North Vietnam. The parallels are there – up to a point. Fonda traveled to North Vietnam at a time when the United States was actively engaged in hostilities with that country: a large-scale air, ground, and sea conflict. McDermott, Thompson, and Bonior traveled to Iraq at a time when the United States was actively engaged in hostilities with Iraq: an air campaign in the "no-fly" zones. In both situations, one finds the requisite overt acts, no dearth of reliable witnesses, and unequivocal aid and comfort to our enemies in the form of propaganda.

But one essential element of the crime of treason – indisputably present in the Fonda situation, but and lacking in the case of the three Congressmen – is intent.

Only in rare cases can criminal intent be proved through direct evidence (for example, from an admission by the defendant). Because intent is a state of mind, almost always it must be proved indirectly. In the crime of treason, the Supreme Court of the United States has consistently ruled that the requisite element of intent can be inferred from a defendant’s overt acts. In Fonda’s case, a jury could have concluded from all that she said and did that her intent was to betray (i.e., harm) the United States.

Not so with the Baghdad Boys. Taken at face value, their self-serving statements of how they were only trying to help, rather than complicate, the desperate situation the United States now faces, suggests a lack of intent to betray America. They may be stupid, grandstanders, useful idiots, publicity hounds. They may even be part of the phenomenon that’s the subject of our next book (Fake Warriors: Identifying, Exposing, and Punishing Those Who Falsify Their Military Service [now in its second edition,,com]) because at least two of them (McDermott and Bonior) claimed they had fought in Vietnam, [so as to sound like patriots], when the truth is that neither one ever left the United States [during that war].

But, legally, they are not traitors.

Our government could not make a treason case stick. As contemptible as their conduct and statements were, the Baghdad Boys are protected by the constitutional guarantee of free speech.
Which is not to imply that those who condemn them as un-American and unworthy of public office are without remedy. Let the last word on these three Congressmen be – not from federal prosecutors – but from their constituents.

Which brings me back to Snowden. As it was with Tokyo Rose and Axis Sally during World War II, Fonda in Vietnam, and now Snowden hiding out in Hong Kong, the touchstone of a successful treason prosecution--under either the Constitution or federal statute--is "intent." A jury found that the two women had it, could have found that Fonda did, and would not have been allowed by a judge to find the Baghdad Boys had the intent to "adhere" to Saddam and give him "aid and comfort."

Based on Snowden's own admissible statements so far, however, a jury could certainly find each one of the treason elements, including intent. Meaning that he, like Hanoi Jane Fonda, is both indictable and convictable of treason against the United States of America.

We'll see whether Obama has the stomach to do what's right.