December 30, 2003



Sen. John McCain announced a new round of Reform proposals today.

"Christmas has become institutionally corrupt," said the Senator. "I woke up the day after Christmas feeling like a 2-baht Saigon hooker on a Tet Love Holiday. And it's not just me; we just can't stop ourselves."

"That's why I'm proposing Christmas Finance Reform," he explained. "Families are too close to children, just like Parties are too close to candidates; and we don't want children to feel indebted to fat-cat donor-parents. So from now on, all private gift-giving will be a crime and we'll have public financing of all gifts."

"Did you promise little Susie a new doll-house next year? Tough!" said McCain, his eye beginning to twitch. "The Federal Gift-Selection Commision has decided she's getting a toy dump-truck. The Government wants more female truck-drivers anyway. Sure; little Susie will cry, but just tell her we here in Washington know what's best."

Another provision of the Act would ban all Christmas caroling 60 days before the holiday. "That's my favorite part...I've always hated that "We Three Keatings" song! Nobody said Reform would be pretty...but I think she's pretty..." McCain shouted, and then whispered, in the now-familiar, unhinged sing-song voice long known to criminologists and FBI profilers.

While endorsed by many serial Congressmen, a majority of Congress recognize that this Act would violate their oaths to the Constitution.

Pres. Bush also said he was firmly against it, and it is widely expected that the Supreme Court would strike down such an outrageous assault on our liberties.

Therefore, it will very likely be passed by Congress, signed by the President and approved by the Court in time for next Christmas.

Justice O'Conner could not be reached for comment, as she was busy researching Saudi court rulings regarding the celebration of Christmas in Mecca.

When asked what was next on the Reform agenda, Squinter McCain, now in full 'Bruce-Dern-on-a-meth-bender' mode, said: "Ya' know...the 4th of July has always kinda' bugged me."

Posted by Noel at 09:33 AM | Comments (1)

December 29, 2003

"How to Explain Conservatism to Your Squishy Liberal Friends:

Individualism 'R' Us"---an essay by P. J. O'Rourke

"The individual is the wellspring of conservatism. The purpose of conservative politics is to defend the liberty of the individual and - lest individualism run riot - insist upon individual responsibility."

..."That we are individuals - unique, disparate and willful - is something we understand instinctively from an early age. No child ever wrote to Santa: "Bring me - and a bunch of kids I've never met - a pony, and we'll share.""

..."The first question of political science is - or should be: "What is good for everyone?" And, by "everyone" we must mean "all individuals.""

"The question can't be: "What is good for a single individual?" That's megalomania, which is, like a New Hampshire presidential primary, the art of politics, not political science."

"And the question can't be: "What is good for some individuals?" Or even: "What is good for the majority of individuals?" That's partisan politics, which, at best, leads to Newt Gingrich or Pat Schroeder and, at worst, leads to Lebanon or Rwanda."

"Finally, the question can't be: "What is good for individuals as a whole?" There's no such thing. Individuals are only available individually."

"By observing the progress of mankind, we can see that the things that are good for everyone are the things that have increased the accountability of the individual, the respect for the individual and the power of the individual to master his own fate. Judaism gave us laws before which all men, no matter their rank, stood as equals. Christianity taught us that each person has intrinsic worth, Newt Gingrich and Pat Schroeder included. The rise of private enterprise and trade provided a means of achieving wealth and autonomy other than by killing people with broadswords. And the industrial revolution allowed millions of ordinary folks an opportunity to obtain decent houses, food and clothes (albeit with some unfortunate side effects, such as environmental damage and Albert Gore)."

Read it all here.

Posted by Noel at 12:55 PM | Comments (1)

December 25, 2003

History Repeals Itself

"To those of us watching from afar the ructions over the European constitution - a 1970s solution to a 1940s problem - it seems amazing that no Continental politician is willing to get to grips with the real crisis facing Europe in the 21st century: the lack of Europeans."

Mark Steyn

Posted by Noel at 02:50 AM | Comments (2)

December 23, 2003

The Modern Jury - distilled to remove the common sense for increased effectiveness!

There's a lot that I like about law and the legal profession. A post from yesterday on my personal blog is a perfect example of that.

Nevertheless, some crap is beyond the pale. I got the link to this story from the Ron Smith Radio Program website. Below is the first paragraph -

A new guide for trial lawyers advises them to be wary of Americans with "extreme attitudes about personal responsibility" when selecting jurors in personal injury lawsuits. The author of the guide says such jurors typically "espouse traditional family values" and often "have strong religious beliefs."

FYI, that's (poorly disguised) code for "Judeo-Christian" religious beliefs. The core belief in the Jewish and Christian faiths is that God created this planet and made us in His image. He gave us a brain to control our impulses and reason our actions and creativity so that we can make a difference in our lives and the lives of others.

The necessary result of having a brain is that you are expected to use it. Of course, people with this basis for their world views will be suspicious of someone wanting the law to appropriate someone else's possessions to them. They will want to know that the plaintiff acted reasonably and used his or her noggin to at least a minimum or acceptability given the circumstances.

This is what the author of the guide calls a "personal responsibility bias." No shit. (Pardon my French).

Anyone who wants to re-allocate the defendants possessions and wealth without asking whether the plaintiff is not truly the cause of his own injury is not seeking justice, at all.

Such a person is attempting to minimize the pain they perceive. The (stupid/irresponsible) plaintiff is actually injured, and maybe the money would make him feel better. The defendant won't feel actual pain if we take his money, so the plaintiff should get the money. The root of the "compassionate-altruistic bias" (as called by the author, and in contrast to "personal responsibility bias"), is the socialist ideal that possessing any more wealth than anyone else is inherently "evil". (For more discussion on this point, see my series "Creativity versus Sharing" part 1, part 2, and part 3.)

The question, then, is: Do we want people with the basis for their world view that has led to the prosperity of the most powerful nation that this world has ever seen (that's the USA, for you frogs) to be excluded from the decision-making role in our justice system in favor of people who have bought into the core beliefs that have led France and the former Soviet Union to their positions of world economic preeminence?

Hmmm... that's a tough one. I guess it would take a Trial Lawyer to figure that one out.

Posted by Bronson at 11:36 AM | Comments (3)

December 20, 2003

Soverign Law for a Sovereign People

It seems to me that some people love the idea of World Government more that they value the protection of Liberty; as if Government itself is the goal and Freedom will (hopefully?) flow from there.

A recent effort/suggestion by the UN to register all firearms worldwide(!) reminds me of something I've wanted to say for a long time about how to read the single sentence of the Second Amendment;

"A well-regulated militia, being neccessary to the security of a free State, the Right of the People to keep and bear Arms, shall not be infringed."

As you can see, by reading an experts examination of the sentence HERE, an accepted interpretation (at least among those who can decipher plain English) is would be: "Since the State needs a militia for it's security, and the militia is comprised of all able men of a certain age group, the people need a secure right to bear arms."

Of course, as made clear in the above link, the 2nd Amendment does NOT a) restrict that Right to be protected only if the 18th century structure of State militias remains in practice, or b) reserve the Right only to members of a State many gun-grabbers like to argue. The militia is invoked only as one example of why the Right is protected.

So, anyway, here is my suggested additional interpretation:
"Since the State must, for the sake of it's security, neccessarily have a standing militia, the People also must have a Right to bear arms for the sake of their security."

Read the 2nd Amendment again with that interpretation in mind. You will see, I hope, that it is just as legit. It's just another way of saying "If all firearms were in the hands of the State, then the last means of removing tyranny would be gone."
The rationale that a well-armed Citizenry is the last line of the defense of their Liberty is not only sound, it is consistent with everything we know about the intent of the Founders.

For example, James Madison wrote in Federalist 46:

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."

Madison was not refering to the ambitions of a foreign State, but of the Federal Government of the United States.
Yes, he's writing about the power of the States, through an armed militia, to secure our Rights. But I insist that the Right of the People to take up arms -- even independent of the States -- against a tyrant is implied.

Wha..? Yep. Because what is being defended are the Rights of the People, not the State. (People have Rights. States have powers; limited by Law and granted by the Governed.)
Madison compared the prospects of a well-armed American people to securing their Rights with that of the subjects of European tyrants, then and now:

"Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

"And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

"Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors."

Don Corleone said in the Godfather, "I keep my friends close, and my enemies closer."
The principles of Federalism -- the philosophy that authority is best kept as local as possible -- is the best way to ensure that a powerful centralized government wont even be in a position to become tyranical.

The UN -- largely an assembly of governments that fear allowing their People to own guns for their own defense -- wants us to register our firearms with Them. If we value our Freedom and our sovereignty, and our ability to secure them, going along with their little plan would be unhealthy, unwise, and, dag gummit, unAmerican.

Posted by Tuning Spork at 12:25 PM | Comments (4)

December 19, 2003

When Trans-nationals Conspire

"For the tranzis, the problem of rogue or abusive governments is not that such governments are too powerful and/or insufficiently accountable to their own citizen/subjects. After all, the source of legitimacy for this lot is not the consent of the governed; rather legitimacy can apparently only be conferred from above. Thus, the creation, from whole cloth, of international institutions such as the UN or International Criminal Court, so that there is a higher, transnational, authority to judge and confer legitimacy on the doings of national governments."

"Of course, being made answerable to the "international community" (read: other governments) comes at the cost of being accountable to your own citizenry. This is the reason that the whole tranzi project is fundamentally corrupt, and corrupting. In my book, consent of the governed is the only source of legitimacy. Period. Discussion over. Turn out the lights as you leave. The tranzi project is corrosive of the consent of the governed, because it substitutes the consent of other governments for the consent of the governed."
Robert Clayton Dean at Samizdata.

Posted by Noel at 07:23 PM | Comments (1)

When Christians Consent

"...there are two opposite reasons for being a democrat. You may think all men so good that they deserve a share in the government of the commonwealth, and so wise that the commonwealth needs their advice. That is, in my opinion, the false, romantic doctrine of democracy. On the other hand, you may believe fallen men to be so wicked that not one of them can be trusted with any irresponsible power over his fellows."--C. S. Lewis "Membership" Sobernost #31 (June 1945)

"When Abraham Lincoln spoke in his famous Gettysburg speech of 1863 of 'government of the people, by the people, and for the people,' he gave the world a neat definition of democracy which has since been widely and enthusiastically adopted. But... nowhere in the Bible is the word democracy mentioned. Ideally, when Christians meet, as Christians, to take counsel together, their purpose is not (or should not be) to ascertain what is the mind of the majority but what is the mind of the Holy Spirit - something which may be quite different."

"Nevertheless I am an enthusiast for democracy. And I take that position, not because I believe majority opinion is inevitably right or true - indeed no majority can take away God-given human rights - but because I believe it most effectively safeguards the value of the individual, and, more than any other system, restrains the abuse of power by the few. And that is a Christian concept." --Margaret Thatcher

Posted by Noel at 12:12 PM | Comments (4)

Governmental Speech

In a fairly interesting review of a case, Eugene Volokh includes this final line:

The Free Speech Clause does not, I think, prevents the government from using a variety of techniques -- speaking through its employees, speaking through people whom it invites because of their views, or speaking through people whom it tells what to say and what not to say -- to express its views (subject to the Establishment Clause constraint that the government can't take stands on religious questions). [SIC]

I disagree with this. I think that the First Amendment was specifically put in place to do two things: (1) Prevent the government from censoring viewpoints it disagrees with; and (2) Prevent the government blatantly supporting given viewpoints (if only because by supporting one viewpoint alternate viewpoints are specifically suppressed.
It is clear to me that under current law in the U.S., government is permitted to subsidize speech however it wishes. Government often is a speaker and it is permitted to say whatever it likes. And if government desires to use taxpayers funds to direct attention to certain topics, there is no basis for constitutional complaint. The exception to this is if government is allocating funds to private speakers in a way that discriminates on the basis of viewpoint (discrimination by either inclusion or exclusion).
Clearly, to me, in the case discussed by Prof. Volokh, there is viewpoint discrimination and that is wrong. It may be considered okay to talk about diversity and homosexuality (this is drawing attention to an issue and well within the free speech right of the government), but it should not be considered acceptable, under the 1st Amendment, to specifically include and exclude certain viewpoints of speech.

This, of course, should be annotated to say that I don't believe that groups such as neo-nazis should have a place at a talk on diversity. But this argument is more on practical grounds - we cannot include all viewpoints, so fringe elements (elements that are ridiculous to the vast majority of society) have to be discluded from the public forums. Now, one might argue that those in favor of homosexuality (and who claim that it is acceptable according the Bible) use to be a fringe element and maybe it did and maybe it didn't. But I would argue that before it could gain a seat a a public, government funded forum it had to claw its way out of obscurity. Such is the burden of the minority in a democratic system.

Posted by DFMoore at 08:46 AM | Comments (3)

December 18, 2003

Federalism: Why We Should Want to Recover This Precious Pearl We Long Ago Threw to the Swine

Putting aside the usual eloquence, I would like to get Right To The Point.

Our Founders didn't trust government farther than they could throw it.

Federalism was a fundamental key to what our nation was supposed to be. Now adays, "Federalism" has become the word used to embody the idea of "states rights." What's somewhat peculiar, of course, is that originally, the same ideals of Federalism espoused by the few who care today, used to be considered radically pro-big-central-government. The opposite of Federalism is now pro-growing-the-central-government, whereas before the opposite was all-power-to-states-and-none-to-the-central-government.

I can't say precisely when this changed, but I can tell you what the single biggest blow to the idea that the Federal Government AND the States need to be sovereigns concurrently was.

The 17th Amendment.

It has annihilated the primary check on the growth of the central government.

Most people don't know what it does or why that's bad. I'll tell you.

Our Founders had a keen understanding of human nature. They understood that people tend to do that which is in their best interest, as they understand it. They designed the Federal government to only have limited powers. The Federal government was really just a small chunk of sovereignty carved away from state sovereignty, and the pieces from each state all together added up to the Federal government.

At that time, the fear was that the states, being more established and the sovereign to which the citizens identified, could run rough-shod over the central government. So each state got equal representation in the Federal government. No matter how big and or populace the state, it got the same as any other state. That representation was in the form of the two senators that each state sent to Congress.

So long as the states were represented, the founders thought, the central government will not grow into areas belonging to the states unless there really is a consensus.

People get representatives too. As citizens, we get one representative per some number (I forget at this moment plus or minus) so that we get approximately equal representation. Viola! That’s why we have the big census every decade. It makes sure that our allotment of representation is never too old. The representatives existed in the House as a watchdog on both the state and the federal interests. You see, this way, the states could not collude with the federal government to take away rights.

Oh, and another thing that was important to the Founders was that all bills pertaining to raising revenue originate in the House. For a long time I wondered, “Why in the House? Why not in either house of the Congress?” The reason, when you look at the original Constitution (pre-17th, I mean) was that the Founders MEANT it when they proclaimed “No Taxation Without Representation!” Taxation, according to the Constitutional plan, must originate by the people who will really be impacted by taxes.

As an aside, it’s also interesting to note that any impeachment proceeding must begin in the House as well. Again you ask, “Why?” Well, it’s quite simple, really. The Founders believed that the most important qualification for the Presidency was high moral character, so the Founders decided that the standard for removing a President was to be “High Crimes and Misdemeanors.”

Tell the truth… When you heard that back in ’98 you believed the news media and the legal experts who, inexplicably, all seemed sympathetic to Bubba, you were persuaded to believe that “High Crimes and Misdemeanors” really meant “Big” or “Really Important” crimes. Right?

That is so incredibly wrong. The phrase comes from ecclesiastical adjudication in the middle ages. As you can all imagine, the idea was that it was one thing to commit a crime against the law, but to offend the God’s law… the HIGHEST law… well, that was really bad. By the time our Founders were around, that understanding morphed into the meaning that “High Crimes and Misdemeanors” were serious moral failings.

Hmmmm… didn’t hear that from CNN did ya?

Anyway, I’ve digressed long enough on that point. What I’m getting at is that the House of Representatives was supposed to be the part of the Federal Government closest to the heart and sensibilities of the people. If the President did something truly morally offensive, the House was supposed to pick up on that.

The Senate, as representatives of the States, were to be seasoned, and understand the law more deeply. The Senate would check the passions of the House and determine if there really was a violation by serving as a special court.

“OK, OK,” you’re saying, “so what does this have to do with why the 17th Amendment is so bad?” -- We no longer have the check. Like I said above, the Founders understood human nature. They didn’t want the Federal government taking BIG steps unless it was in the best interest of BOTH the people AND the states.

How can our federal system survive in any meaningful way if the states cannot assert their interests? The Founders expected gridlock in the Congress. They expected the tension to be a filter that would only let legislation pass that was really likely to be beneficial to our nation.

Now, we have 6-year panderers and we have 2-year panderers, and ALL of them have in their own personal interests the buying of popular votes by bloating the budget and mandating special interests. If it were as our Founders intended, a Senator would REALLY listen when one of his constituents called. He would only have a couple hundred… they would be in the state legislature. If he wanted to keep his job, he would listen carefully when they spoke. How closely does your Senator listen to you now? It’s all a statistics game now. It’s all about how many votes can he buy each tax dollar he allocates, and none of it is about respecting the Federal system.

So… Why should you care? Because if you are reading this, you probably have at least a vague interest in the health of our government and nation. You probably wish the government didn’t spend money like a drunken sailor, and you probably wished the Federal government reach less into your life.

Currently the best we can do is elect Senators and Representatives who have a conscience, and so long as they keep it, they will probably do a passably good job. Eventually, however, the need to be liked by everybody, and the need to pander for votes overcomes them, and then they become part of what we hate. If we repeal the 17th Amendment, we will insulate, to some extent the part of the Federal government interested in restraining the growth of the Federal government.

Repeal the 17th Amendment so that the magnificent health of our Federal government does not starve the liberty out of our nation.

Posted by Bronson at 11:27 PM | Comments (4)

Some Ideas on the Nature of Regulation in

(this post is a combined and rewritten version of posts appearing at DFMoore)

It's a dangerous place, this internet. The Demons of Democracy are everywhere. - DM

Cass Sunstein's discusses regulation and free speech with regards to the internet and it does a really good job at pointing out some of the more pressing issues. One of the main thrusts of the book is that "no regulation/no government" does not mean that speech is free. Quite the contrary, often times governments are needed as regulators in arenas specifically because the speech is not free.
Mr. Sunstein rejects all out the calls of some who would have a cyberspace free of government oversight:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

I do contest with Mr. Sunstein over one point at least.
I'm not a lawyer, so it is probably dangerous taking on one of the most brilliant legal minds of our time, but I'll take my chances.

There is this passage:

[Television] Broadcasters could not exist, in their current form, if not for the fact that law and government are emphatically present. It is law and government that make it possible for them to make money in the first place.
What is true for broadcasters is also true for newspapers and magazines, though here the point is less obvious. Newspapers and magazines also benefit from government regulation through the grant of property rights, again protected at tax payers' expense... The most important reason is that the law has created a firm right of exclusion -- a legal power to exclude others -- and has given this right to both newspapers and magazines. The law is full prepared to back up that right of exclusion with both civil and criminal safeguards. No less than CBS and ABC, the Washington Post and Time are beneficiaries of legal regulation, preventing people from saying what they want to say where they want to say it.

(emphasis added) [Editor - earlier in the book, Mr. Sunstein had developed the idea that Freedom of Speech not only means that you can shout ideas from a corner, but that such a corner can be almost of your choosing - at least in a sufficiently vocal place where your voice can be heard by both detractors and those who agree with you - a sort-of targeted right of speech (my term)]

Television broadcasters are given their distribution channel. The airwaves are a public commodity that was given away to television stations. In the early 90s, government gave existing owners a right to produce digital television - Sen. Dole called this the "$70 billion giveaway." This gift, this guarantee of a distribution channel for information, this guaranteed-unpaid for monopoly over a particular band comes with responsibilities and, of course, with some public control and regulation. But with Newspapers and Magazines, the distribution is not given by the people. Exclusive newspaper rights to a city do not exist. Any newspaper with the proper funding can start up and challenge any other newspaper. The editors and publishers of the paper or magazine pay entirely for its printing and distribution. The exclusion of some people from publishing in a particular paper is merely an exercise of property rights. You have the right to say whatever it is that you want to say, but I, as a private entity, should not be forced to pay for you to say something that I disagree with. It's my money, my property, to be used as I see fit (with, of course, other proper limits on it - this should not be seen as an argument for unfettered laissez-faire capitalism. I actually do believe in some regulation of media enterprises).

So how does this extend to the internet? Mr. Sunstein uses an extension of this argument to show how we already have (through protection of property rights and speech) regulation on the internet. Governments protect us from viruses and protect domain names and addresses. But where Mr. Sunstein sees this as regulation, I see it as merely protection of property and speech. By having a government protect basic rights, we are not creating new regulations, merely having governments do what they are supposed to do ("That to secure these rights, Governments are instituted").

Some may see my argument as merely a semantic one, but I always find it important to distinguish what actually are rights and what are not. The book ( is a really good book that makes many excellent points. Mr. Sunstein argues how the internet, while it does connect society and people in ways that hasn't been seen before, it also divides people, as they read each morning the "Daily Me", hearing echoes only of their own voices and making themselves more and more extreme in their opinions. Hearing voices that you don't agree with is as important to democracy and as fundamental to freedom of speech as hearing voices that you do agree with.

I wonder if Mr. Sunstein was thinking of blogs and RSS/XML newsreaders when he wrote about this. Because often times that what blogs become. An interlocking community of blogs, whose authors all read each other, very many times do just echo each other, growing more and more obstinate in their mutual beliefs.

As I said, it's a dangerous place, this internet. The Demons of Democracy are everywhere.

The (hopefully) future Supreme Court Justice and current brilliant legal mind sent me an email in response.

Many thanks. An excellent question. Here's a crack at an answer:
What makes property "my" property? How do I know that my book, or my website, or my domain name is actually *mine*? I could just assert that it is a mine and claim a right to it. But if that's all I did, it's unlikely to be mine, unless I'm strong or well-armed. It becomes mine only if government and law are willing to create property rights and to protect them. Now I agree that this is a fundamental function of government -- and that governments are created to secure property rights. The only point is that this is a function of government -- and that it is a form of regulation, because it imposes all sorts of regulatory controls on all sorts of people. E.g., if people want to use my website, or my book, and try to do that without my permission, the government will regulate them via both civil and criminal law. That's good -- but it's still regulatory.

-- Hope that helps and many thanks for the generous and kind words.

-- Cass Sunstein

Good answer I think. Any reply I can think of starts waxing into metaphysics and out of law, and what he does say makes a ton of sense.
The argument against is that "ownership" has to, in a metaphysical/moral philosophy sense, mean something more than "has control over". Unfortunately, if you do not "have control over" something then any claim to ownership will simply be in vain. Government, the argument goes, keeps such claims valid - through regulation and enforcement.


Posted by DFMoore at 07:33 AM | Comments (8)

December 17, 2003

Justice Ginsberg's Global Nation

(This entry was originally posted at Blather Review on Aug 6th, 2003.)

Ginsburg: Int'l Law Shaped Court Rulings
Sat Aug 2, 9:48 PM ET

By GINA HOLLAND, Associated Press Writer

WASHINGTON - The Supreme Court is looking beyond America's borders for guidance in handling cases on issues like the death penalty and gay rights, Justice Ruth Bader Ginsburg (news - web sites) said Saturday.

WHAT?!!!! Ex-squeeze me?! I baking powder?!! Look to the U.S. Constitution, Ruthie. You remember that, that thing you took an oath to uphold...?
The justices referred to the findings of foreign courts this summer in their own ruling that states may not punish gay couples for having sex.
And in 2002, the court said that executing mentally retarded people is unconstitutionally cruel. That ruling noted that the practice was opposed internationally.

As for executing the mentally retarded being unconstitution on the grounds of it being "cruel and unusual", that requires no look beyond our shores.

But, the Authority of the Federal government to rule on a State sodomy case requires an examination of our own Constitution -- whatever the verdict -- and not on any non-U.S. law or court decisions.
Most foreign courts have no sworn Duty to observe and protect a Seperation of government Powers, nor to respect the sovereignty of local jurisdiction. Apparantly Justice Ginsberg, and a few others on the SCOTUS, don't believe they do either:

"Our island or lone ranger mentality is beginning to change," Ginsburg said during a speech to the American Constitution Society, a liberal lawyers group holding its first convention.

Am I the only one who sees something bizarre in that sentence? An "American Constitution Society" that seems intent on undermining the purpose of the Constitution. Precious.
And "Our island or lone ranger mentality"?! Er, would that be the Independence from European rule that our forebears fought and died for? Would that be our belief that we govern by a Rule of Law, not of the whim of tyrants? Would that be our belief that governments derive their just powers only by the consent of the Governed, not by the "mentality" of unchecked -- and unbalanced -- Judges?

Justices "are becoming more open to comparative and international law perspectives," said Ginsburg, who has supported a more global view of judicial decision making.

How 'bout being more open to recognizing the limits of your Authority? A "global view of judicial decision making"?!! Who the hell are you to look to anything but the Law and Constitution of the United States -- written by the People whom it governs -- to adjudicate a U.S. case? Huh? Answer me!

Okay, the article then presents some clear-headed rebuttals from Justice Scalia and others, but since reading that calms me down, let's just skip to the final paragraphs:

Ginsburg said Saturday that the Internet is making decisions of courts in other countries more readily available in America, and they should not be ignored.

God, she's dumb. Courts in other countries don't make decisions based on U.S. Constitution law, ours is supposed to.
"While you are the American Constitution Society, your perspective on constitutional law should encompass the world," she told the group of judges, lawyers and students. "We are the losers if we do not both share our experiences with and learn from others."

What have you been smoking, Ruthie? Can you hear yourself talking? In all my years of studying law (as a hobby) I've never seen a more dumbass oxymoron than that sentence in bold.

And "learn from others?" We've learned a lot from other over the centuries. The framers of the Constitution learned that tyrants will tax a people into poverty to fund their glory.
We've seen how they disarm the people to secure their station, ravage village after village to subdue the People into docile servitude.
We've learned that racism can, when authority is centralized, result in genocide.
We've learned that Socialism breeds despair and hopelessness, leading only to economic mediocrity at best.
We've learned that imposing any small restrictions on the speech, assembly, media, privacy, right to due process of law, and Property will only lead to large ones.
Yep, we've learned alot from others.

But, for the sake of the issue directly at hand, just remember that it all comes down to this one: We've learned that a judiciary must be constrained to Law as written by representatives of, and accountable to, the People that it governs.

Oh, and I got a global view for you right here....

Posted by Tuning Spork at 06:39 PM | Comments (4)

December 15, 2003

Intent is 9/10ths of the Law

Once upon a time in the Land of Make-Believe there was a small band of thieves that stalked a public park wearing KISS make-up. They would jump out of the bushes and snatch the purses of old ladies, take the watches from yuppie men, and the candy necklesses from little boys and girls.
"I have no idea who they were or what they look like," each victim would tell the police. "They were wearing frickin' KISS make-up!"

The local citizenry was outraged that common criminals would conceal their facial features and make it impossible to indentify them in a police line-up.
The town's Council passed an ordinance making it unlawful to wear greasepaint, or any mask, to conceal one's true identity while on public property.
The townfolk were very pleased with this new law. Until Halloween came around.

"Oh, no! We've killed Halloween!" one mother of four cried to the Mayor as she consoled her sobbing children in the Town Hall, "and the Council is out of session until January! Whatever will we do?"

"Go to the Courts!" one brave high school student roared.

"That ain't gonna work," said the local florist. "The law is plainly written: 'No masks in a public place'. I'm afraid there'll be no trick-or-treating this year."

But the moms and dads of the Land of Make-Believe took the case to court anyway...and won.
The Justices of the Court wrote this very brief opinion:

This court finds that the statute at issue in this case does not prevent the celebration, observance or practice of Halloween; nor of any festivities heretofore traditional and appropriate including, but not limited to: individual mask-wearing, trick-or-treating, bobbing for apples or any other similar produce, assembled masquerade parties, keggers or any other activities associated with Halloween at time previous to the enactment of said statute.

Why not?
Because the Court looked at the Legislative intent of the statute and found that it had been originally intended to stop thieves from hiding their faces during the commission of a crime. Since there was never any intent by the Council to interfere with the traditions of Halloween, the Court ruled (since the Council was out of session and could not clarify the law) that Halloween could go forward.

Determining the "legislative intent" of a law is one of the major tools of settling case law. In order to adjudicate the Law, a Court must know what the People -- via their elected legislators -- have intended that Law to be.

The Supreme Court of Massachussetts has recently ruled that the right of homosexual men and women to marry within their own gender is guaranteed by the Massachussetts state Constitution. They argue that to forbid marriage on the grounds of sexual identity is discrimination under the Law. But is it?
From Merriam-Webster's online dictionary:

mar·riage ('mar-ij) noun 1 a : the state of being married b : the mutual relation of husband and wife : wedlock c : the institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family. 2 : an act of marrying or the rite by which the married status is effected; especially : the wedding ceremony and attendant festivities or formalities. 3 : an intimate or close union [the marriage of painting and poetry -- J. T. Shawcross]
The word "marriage" meant to John Adams -- author of the Massachussetts Constitution -- just that: a legal union between a man and a woman. The fact that recent cultural shifts (and the resulting etymology) has resulted in our use of such terms as "same-sex marriage" is irrelevant to the Law. The intent of the Law's authors and ratifyers -- the People -- trump any foggy notions of what any altered usage of the language might, to the selectively undereducated, imply.

What the Massachussetts Supreme Court has done is to take the language of the People as it was (and intended to be) understood, and translated it into the modern colloquial usage.
Whether or not you or I support or oppose the legalization of gay marriage or civil unions isn't at issue (I happen to support it) . The issue is: Who, in a republic of laws, not tyranny, writes the Law?

Judicial Tyranny is the art of changing existing Law by redefining the words that already make up that Law. The rule of Whim -- of a few black-robed government appointees assuming Rule of the People -- is the most dangerous and insidious of the ways in which the rule of the People may be undermined because it imposes upon them a Law which they did not write and to which they did not consent.

Oh, and that Gene Simmons guy? That was me. (hey, Tongue is 9/10ths of the Kiss y'know...)

Posted by Tuning Spork at 08:43 PM | Comments (6)


"...But the problem, my dinner companion argued, wasn't the vision of a mega-bureaucracy. The problem was the cowardice of politicians who were afraid to make decisions their countrymen might despise. Asking the citizens of these countries what they want is a mistake, he said. "Voters are stupid. They always vote their prejudices." The European leaders were happiest with no decision at all."

"I wondered aloud if maybe getting the consent of the governed before changing who governs them might not be a good idea. That was obviously a dangerous notion. "For something as complex as the EU, it doesn't make any sense to ask their opinion," my friend said. Who would expect the common man to understand something as heavy going as the draft constitution? "Besides," he added, passing a bromide across the table, "that's why they elected representatives — to make these decisions for them.""

Denis Boyles at NRO.

Posted by Noel at 08:28 PM | Comments (0)

The Federalist Speaks

"The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow from that pure, original fountain of all legitimate authority." — Alexander Hamilton, Federalist No. 22, December 14, 1787

Did you know?:

Sec. Hamilton was an active abolitionist in the 1700's?
He formed his own artillery company while a teen-ager?
He was ineligible to become President, having been born in the West Indies...ironically, this gave him a national view, having no previous attachment to a particular state.

Posted by Noel at 08:20 PM | Comments (3)

Common Consense


"A French bastard (William the Conqueror) landing with an armed banditti, and establishing himself king of England against the consent of the natives, is in plain terms a very paltry rascally original. It certainly hath no divinity in it. However, it is needless to spend much time in exposing the folly of hereditary right, if there are any so weak as to believe it, let them promiscuously worship the ass and lion, and welcome. I shall neither copy their humility, nor disturb their devotion."--Tom Paine's 'Common Sense'

Mr. Paine believed in the Consent of the Governed. And evidently, he was no great fan of French bastards. I feel your pain, Tom.

A blog named for Jefferson's famous Declaratory phrase must, of course, examine what is meant by 'consent', what comprises 'governance', and determine the identity of those being 'Governed'. And so we shall...but not today. Today, I merely wish to make Sally Hemmings jokes. If that offends you, well, as Jefferson said to Ms. Hemming's offspring "Hey, kids; lighten up!"

You're right; Hamilton WAS funnier.

Regardless of the rumors, Miss Hemmings had no consent in her own governance. Slavery is tyranny in its most distilled form, except for genocide; the slave 'owners' at least usually sought to keep their 'property' alive. For all its malignant evil, slavery was a stark wrong. Our challenges today are far more amorphous, a Smurf word meaning "Beware the Ruth Bader-Meinhoff Gang of Five!".

It must be admitted that we are, on the whole, much more free, informed, healthy, wealthy and scientifically knowledgeble than at any time in history.

Perhaps that is why one hears so much piffley criticism; only when one is not chained to a galley can one focus on searing indignities such as 'inappropriate looking' or freeing Willie at a cost of millions. I assure you that the hungering millions of yesteryear would have zero time and less sympathy for any People for the Animal Treatment of Ethics (PATE') campaign. Especially one which placed both the egg and the chicken, not to mention chicken-coop Feng Shui issues, before the needs of hungry people.

Consent, and consensuality, are all the rage today. (Ironically however, the phrase 'all the rage' has gone out of style.)

That's why we provide college students classes such as "Orgy 101: Is Inviting Less than a Dozen 'Non-Inclusive'?. But then we insist that the participants sign a form acknowledging consent at each stage of intimacy, until the love-nest is so papered-over that it resembles the False Affidavit Wing of the Clinton Library after a 'Miss Arkansas' contest at the Little Rock Hilton. Marriage may be 'just a piece of paper', but swinging requires its own Dewey Decimal system.

After your institution of higher learning has helped you express your consensuality, it will, of course, provide you with any necessary medical services on a confidential basis.

That means they won't tell your parents, who pay your tuition in their own little-minded, repressed bourgeois way. Because they might actually withhold their consent. And their tuition check.

Which would violate the Geneva Conventions, UN Resolutions 242 & 345, The Code of Hammurabi...and might even prevent the Dean of Law from taking his Spring Break vacation with his teaching assistant. And that would have a 'disparate impact' on his Constitutional Right to Consensuality, violate the 'Livin' La Vida In Loco Parentis' Clause of his frequent-flyer miles fine print, causing major self-esteem issues with the resultant lawsuits...and forcing me to use several other latin words and legal phrases.

Trust me, parents; you don't want that. Let it go. Write the check.

And now you understand 'Consent', Mom & Dad.

Oh; and don't forget to sign it.

Posted by Noel at 04:29 AM | Comments (0)

December 13, 2003


Throughout history the natural order of States seemed to be that governments ruled the People. Tyrants crowned themselves as if convinced of their right to rule with Divine blessing (or even that they themselves were Gods). The divine right of kings was that they'd earned their station (and their responsibility) by being born into it. Order was bestowed to the great unwashed in society by their wise and literate betters. All authority was in the hands of the State, and the People were at it's mercy, always dependent on the kindness of the strangers who ruled them.

When the Law is taken into the hands of a powerful few with no accountability to the People, then Liberty is in peril. There are, of course, many countries in the world today where the People's liberties are granted and lost at the whim of irrepressible tyrants.

The Declaration of Independence established that Americans had ceased to recognize the subordination of the People to a Crown. It stated that in order to secure to the People their inalienable Rights: "governments are instituted among men deriving their just powers from the consent of the governed."
The Revolution introduced a new natural order of States:
The divine right of the People is that they've earned their Rights by virtue of having been born into them.

People have Rights, governments have powers; and only those powers specifically granted to them by the People. Practicing a rule of Law, not of the whim of men in office, is essential if we are to protect the existence of "government of the People." The principle that a legislature, executive or court shall not presume to have any authority that it has not been granted must be religeously re-enforced. If we stand by silently while they who are, for a term, entrusted with the stewardship of the Republic -- be they legislators, executives or judges -- assume for themselves permission and authority that they have not been granted, then we, in America and in the free world, will simply be allowing tyrants to rule the People once again.

Congress may pass a law abridging the freedom of speech; a President may sign it; a Court may even uphold it (finding that the State has a "compelling interest" in abridging your Liberty), all without respect for the Constitution's proscribed amendment process, or the understanding that the State has no interest, compelling or otherwise, that the People haven't instructed it to have.
It has happened, and it will happen again.

We here at Consent of the Governed want to preserve the rule of Law -- the rule of the People -- by exposing instances, great and small, where governments at all levels and at all branches excercize authority that the People have not granted to them in their Constitutions and Charters. Hopefully we'll even spread the word to those who haven't heard -- or haven't fully understood -- that if we allow one Right to be lost then that becomes a precedent in Law that can only mean that all Rights can be taken away at any time and without Our consent.

Tyrants will take power from the People until they are stopped, and so we must forever be vigilant in our proposition that "government of the People, by the People and for the People shall not perish from the earth."

Posted by Tuning Spork at 09:45 PM | Comments (15)