Monday, December 21, 2015

Why Mrs. Clinton lies

During Sunday night's underground Democrat Party debate, America's most prominent serial liar, Hillary Clinton, lied about ISIS using Donald Trump's rants about Muslims as a recruiting tool.

Since then, the commentariat -- Dick Morris, Rush Limbaugh, the Fox News Gang, and many others on the Right -- have knocked themselves out trying to analyze why Hillary keeps lying. Recall sniper fire in Bosnia, the Rose law firm records, the hapless patsy who made the Benghazi video, and much more.

To me, the answer has been obvious for years. I wrote about it some two-and-a-half years ago:

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Sunday, May 19, 2013

Hillary Clinton: Immoral or Amoral?

During her recent Congressional testimony about the notorious Benghazi Affair Hillary Clinton uttered the now infamous rhetorical question “What difference, at this point, does it make?” Note my emphasis on the word “it.” In the context the question was asked and answered Clinton’s “it” referred at least to the murder of four Americans, and probably the State Department’s antecedent failure to provide adequate security and the White House’s subsequent stonewalling cover-up. 

In other words — according to the former First Lady, United States Senator, presidential aspirant, Secretary of State, and putative 2016 democratic party presidential candidate — it made no difference that the government of which she was then a high-ranking member exposed Americans to high-risk danger, left them defenseless in a hotbed of terrorists, made no effort to rescue them, literally watched them being murdered, and then tried to cover up apparatchik  malfeasance by lying through officialdom's teeth to the people of the United States.

“What difference?” indeed.

But beyond what has become obvious about Clinton’s and her colleagues’ betrayal of the deceased Americans and the rest of the government’s malfeasance, the Benghazi Affair reveals something even more sinister.

Over the years, some of Hillary Clinton’s questionable conduct has not involved issues of morality. She has been a poseur, playing the role of victimized, yet forgiving, wife during the Lewinsky scandal. She has been a hypocrite, castigating George W. Bush for warrantless surveillance but using purloined tapes to her own political advantage. She has been a paranoid, complaining to the world about the alleged “right wing conspiracy.” She has been a conniver, ousting career White House travel office employees in favor of her cronies. She has been a dilettante, presuming to make over America’s health care system. 

While this conduct, and much more like it, has been unseemly and at odds with the dignified and trustworthy image that had been projected by modern-era First Ladies from Bess Truman to Laura Bush, none of Hillary Clinton’s conduct raised serious moral questions.

On the other hand, Clinton has done many other things that have raised serious questions of immorality (immoral defined as “not in conformity with accepted principles of right and wrong behavior; contrary to the moral code of the community” [Webster’s New World Dictionary of the American Language (13th ed.)]; in other words knowing, but disregarding, principles of morality).

Mrs. Clinton authored a brief reeking with fraud while a staff lawyer for the Watergate Committee. She was a beneficiary of illegal commodities transactions that turned her a large profit.  She fraudulently stung lenders in the Whitewater land scheme. She bought votes and campaign contributions with criminal pardons issued by her husband. She lied about Chinese contributions to her political campaigns. She participated in slandering and intimidating women whom her husband sexually and otherwise abused, and was complicit in covering up his salacious conduct. She blithely desecrated the presidency by selling the Lincoln Bedroom to donors and celebrities. She stole furniture and furnishings from the White House. And much more, including her recent complicity in the murder of four Americans in Benghazi and the attempted cover-up of the entire sordid affair. All immoral conduct.

There’s more, but to elucidate all of it would be to gild the lily. Hillary Clinton’s immoral conduct— rationalized by her adherence to the “Rules for Radicals” promulgated by her mentor Saul Alinsky — has been detailed on the public record for decades, especially since her abortive campaign for the Democratic Party presidential nomination in 2007. 

At that time, I raised the question of whether Clinton’s decades-old questionable character traits and corner-cutting conduct demonstrated that she was merely immoral or, worse: Whether she was amoral—and whether there’s any important difference between the two concepts.
The answer is that there is a difference, a profound one, and with Hillary Clinton’s eye on a 2016 presidential nomination it’s crucially important for the future of the United States of America that the voters of this country understand it.

I begin with the concept of “morality” itself, one which Americans instinctively understand.  Rooted in fundamental notions of “right” and “wrong,” most Americans know (or knew!) that it’s right to pay our bills and protect our loved ones; that it is wrong to defraud creditors and abuse children. It’s immoral to buy votes, lie to investigators, release terrorists for a political quid pro quo, attack the defenseless, steal from the White House — all conduct Hillary Clinton was a party to — as well as to engage in countless other actions which, by anyone’s definition, must be characterized as immoral.  That this prospective candidate for the presidency of the United States has acted immorally time and time again is clear beyond any legitimate disagreement.

But what about amorality?—defined as “being neither moral nor immoral; specifically: lying outside the sphere to which moral judgments apply; lacking moral sensibility . . . .”  (Merriam-Webster’s Collegiate Dictionary (10th ed.); emphasis in original.)

A person who is amoral does not accept any moral standard by which her conduct is to be judged by othersShe simply does not care about the concept of morality, about right or wrong, in what she thinks, says, or doesMorality does not apply to such a person. What difference, at this point, does it make?” could well be such person’s mantra.


 Thus, the questions arise: Does all of Hillary Clinton’s dubious conduct over the course of decades reflect a simple, garden-variety immorality—knowing but eschewing the right, and deliberately doing the wrong? Or does Alinsky’s acolyte — the leading candidate of the Democrat Party for the presidency of the United States — at root care nothing for morality and deem it to have no application to her? Is Hillary Clinton amoral?

Her record (let alone her character) leaves no doubt about the answer.  Yet Clinton and her supporters ask: “What difference, at this point, does [morality] make?” 

To ask the question is to answer it.

Monday, August 24, 2015


Lately, I've been asked about the meaning of Section 1 of the Fourteenth Amendment.

In the final analysis there are fundamentally two very different aspects to the so-called anchor-baby issue. One is the political, which is a waste of time to discuss because it is driven by stupid voters, avaricious businesses, bleeding hearts, powerful lobbies, corrupt politicians, activist minorities, patrician elites.

Legally, however, there’s a long, scholarly constitutional answer. It relies on what Section 1 of the 14th Amendment meant to those who drafted, supported, and enacted it. The short answer is no instant citizenship for anchor babies.

Moreover, because all issues arising in constitutional decision-making arise only in one way -- from the facts of each case -- it is crucial to understand that no case has ever been brought to, let alone decided by, the Supreme Court of the United States raising the citizen status of a child of illegal aliens. The question is wide open, and if it ever reaches the Court that body will be writing on a clean slate. (So much for the Constitutional-deprived media blowhards who insist, with their ignorance on display, that everyone born in the United States is a citizen no matter the legal status of their parents.)
This lack of constitutional precedent is ground for great fear because to today’s “living constitutionalists,” both on and off the bench, Section 1 means whatever at least five justices say it means.

Yet no Republican presidential candidate has spent time addressing the prospect that the next Chief Executive will probably have the power to reshape the Supreme Court of the United States for decades to come.

What's new?

Sunday, May 24, 2015

Happy Memorial Day, or Solemn Memorial Day?

In the last several days some of my friends have wished me "Happy Memorial Day." Well-intentioned as they were, they've made a serious mistake.

Memorial Day, the last Monday in May, is a federal holiday established to remember those who died while members of the United States of America's armed forces (unlike Veterans' Day, which celebrates all those who served).

With its genesis in Decoration Day -- when volunteers decorated the graves of the fallen with flowers --  Memorial Day is not a day for barbeques, baseball games, or used car sales. It's a day for all Americans -- those of us who wore our Nation's uniform, and those who were not so privileged -- to memorialize by thought and/or deed how much the dead have paid . . .  and how much we owe.

Just as the day the United States of America was born on Independence Day -- not the "Fourth of July" -- and should be celebrated with fireworks, patriotic songs, and loud band concerts, Memorial Day is too solemn an occasion for joy.

Requiescat in pace

Friday, March 27, 2015

No deserter left behind: Some observations about the Bowe Bergdahl case

Every pundit, politician, official, press hack — everyone — who regurgitates the mantra that the United States “leaves no man behind” either deceitfully knows better, or is ignorant of American military history. 

Sadly, in the Twentieth Century alone the United States left men behind in World War I, afterwards when our troops fought the Bolsheviks in Siberia, in Europe following WW II, during the Cold War, after the armistice in Korea, and without doubt again when America ignominiously pulled out of Vietnam in the mid-1970s. 

The “no man left behind” mantra is an obscene slogan designed to assuage the consciences of too many of our countrymen, for example Secretary of State John Kerry. (Did you know he spent a couple of months in Vietnam?) For more on the abandonment of Americans to its enemies, see my lengthy essay Archangel 1918 to Hanoi 1972.

The two heavy charges levied against alleged deserter/coward Bowe Bergdahl likely preclude a sweet plea deal, for example AWOL. He will have to do time. I predict no less than 5 years, perhaps as much as 10.

For the same reason, the New York Times-floated idea that in a plea deal Bergdahl could receive an honorable discharge is as fanciful as the notion floated by his defense lawyer that the soldier left his unit in Nowhereville, Afghanistan, in search of a general officer to whom the accused could complain about something or other. This is a confession that there is no defense.

Then there is the suggestion that Bergdahl should receive leniency and be sentenced to “time served.” This is so absurd that I’m embarrassed to repeat this perverse idea, even as I debunk it. The suggestion means that deserter/coward Bergdahl should be credited with the 5 years he spent with the Taliban savages to whom he defected, erasing the distinction between incarceration in a United States prison (which he richly deserves) and his at least initial desire to make common cause with murders who were killing his countrymen and many others.  One wonders whether if Bergdahl had been held, say, 20 years, he would have been entitled to a pension.

Lastly, for now, if even a single American fighter was even wounded in searching for Bergdahl, let alone killed, he should receive the death penalty. That would be appropriate justice. Indeed, it would be lex talonis: "An eye for an eye."

Even the Taliban would understand that.

Monday, March 23, 2015

Justice Thomas does it again!

If I write a third edition of The Supreme Court Opinions of ClarenceThomas: 1991 — 2011 his concurring opinion discussed in Mark J. Fitzgibbons’ splendid essay will surely be included.

American Thinker

March 20, 2015

A little-noted masterpiece of constitutional scholarship by Justice Thomas

Everything you really need to know about the Constitution (and that’s barely an exaggeration) -- why it is structured the way it is, what led to it, its purposes -- is found in pages 2 – 12 of the March 9 concurring opinion by Justice Thomas in the Dept of Transportation v Assn of American Railroads case. Although it received little media attention, Justice Thomas has provided us a masterpiece of constitutional thinking, explaining why “administrative law” -- the practice of delegating to bureaucrats the making and enforcement of rules with the force of law – is so profoundly unconstitutional.

You could spend years reading history books, the Federalist Papers, and case law, but you won’t find a better explanation of the essence of our Constitution.  If you understand what’s in these few pages, you understand why we have the Constitution, why it is structured the way it is, and why it is essential to the American experiment.

Pay attention to his words and the words of others he cites -- arbitrary, unilateral, etc.  Justice Thomas describes the dangers that the Constitution was written to prohibit, and he traces the roots of those dangers to abuses of the English “rule of law” on which the Constitution was based, but perfected in America to address those abuses.  The Constitution corrected several flaws of the English system including limiting the authority of the legislative branch by placing the Constitution – this written law of the land – over all three branches of government.

As to our system of administrative law, we may often wonder how unelected bureaucrats got all sorts power to regulate us.  Citing not only James Madison, John Locke, Sir William Blackstone and Montesquieu, but also modern legal scholar Professor Philip Hamburger and his brilliant book, Is Administrative Law Unlawful?, Justice Thomas shows America is back to the problems that the Constitution was written to prohibit by writing a mini-treatise on the Constitution itself.

His explanation of the Constitution provides a guide to how today’s administrative agencies are so out of whack with the separation of powers.  Concurring opinions rarely get much attention.  This one by Justice Thomas, however, was so effective that it drew a snarky article in Bloomberg by President Obama’s former regulatory affairs guru, Professor Cass Sunstein, stating that Justice Thomas is “eccentric,” and claiming that Justice Thomas “usually interprets the Constitution in a way that fits well with his admirers political convictions.”

That’s bitter rubbish, of course, since the constitutional scholarship and fidelity that Justice Thomas has always exhibited is in no better form than this March 9 concurring opinion, which exploits the dangers of the radical, lawless, and unconstitutional practices that Professor Sunstein and President Obama have used to advance their ideological agendas.

Read the whole thing, but here are some highlights, with most case and other references elided.

When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it.  (snip)

For example, Congress improperly “delegates” legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative power. (snip)

An examination of the history of those powers reveals how far our modern separation-of-powers jurisprudence has departed from the original meaning of the Constitution. (snip)

The function at issue here is the formulation of generally applicable rules of private conduct. Under the original understanding of the Constitution, that function requires the exercise of legislative power. By corollary, the discretion inherent in executive power does not comprehend the discretion to formulate generally applicable rules of private conduct. (snip)

The idea has ancient roots in the concept of the “rule of law,” which has been understood since Greek and Roman times to mean that a ruler must be subject to the law in exercising his power and may not govern by will alone. (snip)

…it became increasingly apparent over time that the rule of law demanded that the operations of “making” law and of “putting it into effect” be kept separate…. But when the King’s power was at its height, it was still accepted that his “principal duty . . . [was], to govern his people according to law.” (snip)

…it was generally thought that the King could not use his proclamation power to alter the rights and duties of his subjects…. but he could not of his own accord “make a law or impose a charge.” (snip)

King James I made a famous attempt…prompting the influential jurist Chief Justice Edward Coke to write that the King could not “change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament….”  Coke associated this principle with Chapter 39 of the Magna Carta, which he understood to guarantee that no subject would be deprived of a private right—that is, a right of life, liberty, or property—except in accordance with “the law of the land,” which consisted only of statutory and common law….. When the King attempted to fashion rules of private conduct unilaterally, as he did in the Case of Proclamations, the resulting enforcement action could not be said to accord with “the law of the land.” (snip)

It followed that this freedom required that the power to make the standing rules and the power to enforce them not lie in the same hands. (snip)

William Blackstone….  defined a tyrannical government as one in which “the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men,” for “wherever these two powers are united together, there can be no public liberty.” … Thus, although Blackstone viewed Parliament as sovereign and capable of changing the constitution, … he thought a delegation of lawmaking power to be “disgrace[ful]” …. (snip)

… in The Federalist 47, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty than” the separation of powers…. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.” …

This devotion to the separation of powers is, in part, what supports our enduring conviction that the Vesting Clauses are exclusive and that the branch in which a power is vested may not give it up or otherwise reallocate it. The Framers were concerned not just with the starting allocation, but with the “gradual concentration of the several powers in the same department.” The Federalist No. 51, at 321 (J. Madison). It was this fear that prompted the Framers to build checks and balances into our constitutional structure, so that the branches could defend their powers on an ongoing basis….

In this sense, the founding generation did not subscribe to Blackstone’s view of parliamentary supremacy. 

Parliament’s violations of the law of the land had been a significant complaint of the American Revolution…. even the legislature must be made subject to the law. (snip)

At the center of the Framers’ dedication to the separation of powers was individual liberty…. This was not liberty in the sense of freedom from all constraint, but liberty as described by Lo>[in a footnote to this point] I do not mean to suggest here that the Framers believed an Act of the Legislature was sufficient to deprive a person of private rights; only that it was necessary. See generally Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1715, 1721–1726 (2012) (discussing historical evidence that the Framers believed the Due Process Clause limited Congress’ power to provide by law for the deprivation of private rights without judicial process). (snip)

The “check” the judiciary provides to maintain our separation of powers is enforcement of the rule of law through judicial review. (snip)

We have been willing to check the improper allocation of executive power, see, e.g., Free Enterprise Fund,… although probably not as often as we should….  Our record with regard to legislative power has been far worse. (snip)

Implicitly recognizing that the power to fashion legally binding rules is legislative, we have nevertheless classified rulemaking as executive (or judicial) power when the authorizing statute sets out “an intelligible principle” to guide the rulemaker’s discretion…. Although the Court may never have intended the boundless standard the “intelligible principle” test has become, it is evident that it does not adequately reinforce the Constitution’s allocation of legislative power. I would return to the original understanding of the federal legislative power and require that the Federal Government create generally applicable rules of private conduct only through the constitutionally prescribed legislative process.

His conclusion from page 27 is vintage Justice Thomas -- plainly written, and just plain brilliant.

We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.