Sunday, April 25, 2010

What to do about Iran

Our news seems filled with Iran even when there is no real news. The recent release of the “secret” memo by our Secretary of Defense which revealed his concerns about Iran is but one example, whatever it is he meant (take your pick – he says one thing, the media says another).

I want to go over the Iran nuclear issue and at least look at the other side. You can call it playing devil’s advocate, but I won’t write anything I don’t believe is true.

I am not a dove. Even back of the days when I was a proud lib (ending sometime in the late 80s) I made an exception with my hawkishness in that I thought we never spent enough on defense – that we should have the most and biggest and baddest weapons around to an overwhelming degree. Also, that we had to show a willingness to fight if necessary and not run when the going got tough. I still feel that way (yes, I guess that make me a chickenhawk).

Naturally, I have no problem with our taking action to defend ourselves in any circumstance, even pre-emptively if there is a “clear and present danger”. Moreover, I get the America to the rescue ideal, although that must be handled with the great care and reserve.  However, all that is not a license just to attack whoever we want, even countries where we despise the leadership, be it North Korea, Venezuela or Iran. Nor am I one who adopts the position that if there is any degree of potential attack on the United States we are justified in attacking another country. When Bush and Cheney were in power, they supposedly adopted the 1% rule – if there was even a one percent chance of a nuclear weapon going off in the United States, they were justified in doing whatever they thought needed to be done. I don’t know how many people agree with that, but I'd ask them if they'd apply the same standard to their neighbor if he or she felt threatened by them when they walked down the street. Life is filled with risk and we all have to deal with it. We survive and thrive as a civilization because we don't act on our fears all the time.

If there is strong evidence that Iran is close to developing nuclear weapons, perhaps most Americans would support our doing what whatever needs to be done to stop it – even if it is military in nature. It probably depends on the state of our economy. But, if there isn’t strong evidence – if it just a matter of governments which don’t like each other rattling sabers, we certainly shouldn’t be lobbing anything at Iran. I don’t think that anyone for a second believes that our military can’t demolish Iran’s. And, I don’t think we’d again make the mistake of the Pottery Barn policy – you break it, you buy it – one of the dumbest policies we’ve ever had. So, we probably would not be invading; we would be bombing. The first target is their sole gasoline refinery, the second their parliament and capital.

In the real world, you often don’t get smoking guns. Whatever evidence in hindsight there was about Pearl Harbor and 9/11, and whatever we should have known, they caught us by surprise. Naturally, we don’t want that to happen again. Unfortunately, the combination of U.N. inspections and our own (and perhaps Israeli) intelligence, only takes us so far. We just don't know what they are doing.

Iran is run by tyrannical religious zealots. This is shown to be doubly so when they feel their power is threatened. I do not know that they are bad neighbors, the whole Arab/Persian and Shi’ah/Sunni thing coloring that issue immensely. Unlike Saddam’s Iraq, the regime has not directly attacked anyone other than in its war with Saddam, and long ago we stopped being deluded as to Saddam’s innocence in that matter. There is supposedly evidence that their intelligence services work with Shi’ite militants in Iraq, that they are arming and helping Hamas and Hizbollah, that they are a leading supporter of terrorism in the world. And, if you haven’t forgotten (it would be easy), there are three young Americans who are apparently strayed across the Kurdistan border, were captured, and have been held in Iran since last July without even seeing a lawyer. We invaded Panama with a lot less of an excuse.

It’s not that any of that surprises me. But, leaving aside the hikers, we mortals don’t get to see that evidence. We are told it exists. I have always been puzzled why, if there is proof that Iran is responsible for IUDs in Iraq, we haven’t attacked them? However, I do realize that intelligence can’t just be made public for a number of good reasons and it doesn’t mean it doesn’t exist. Yet, there are limits to my credulity.

As I begin to write this I am listening to speaker after speaker in our House of Representatives call for an end to diplomacy and persuasion in dealing with Iran. I don’t think they are calling for war. What then – so called crippling sanctions, which if they do cripple, rarely humble or destroy. There are exceptions, of course, but not recently. The blockading of Japan did undoubtedly lead to their attacking us at Pearl Harbor. Perhaps that is wanted here? Some suggestions are that we blockade their selling their oil through the one avenue they have. No doubt our powerful navy with the help of the Israeli Navy is quite capable of it. I have no doubt that it would lead to some kind of military action by Iran and that we would be triumphant in a war if we don’t try and occupy them. There would be consequences, of course. Possibly – and it is only a possibility – it would rend politically fragile and volatile Iraq apart. And we might take some blows from Iran, but I do not they would be anything worse than we dealt with during our initial invasion of Iraq.  

I continually ask myself – where is the proof Iran is building a bomb? I would like there to be proof. Nothing would make me happier than for Iran's present regime to bring about its own destruction, although it would be preferable to have it without our involvement or bloodshed. When Iran took British sailors hostage a couple of years ago, I was outraged at Britain’s kowtowing (what the hell happened to the British Lion?) and was also angry that their younger and much stronger brother – us – did not tell Iran you have 24 hours to hand over those prisoners unharmed or we will blow your one gasoline refinery to pieces and deal with the consequences. I am glad that the British hostages were let go and were mostly unharmed (although terrified). But, I believe that this empowered Iran and is part of the reason they believe they can simply bluff their way to anything they want to do in the region.

I hear all the time that you can’t use the legal standard of proof in world affairs. I don’t disagree with that. But there still must be some proof. Otherwise, you take actions you can't justify.  Probably the prediction of which I’m most proud was that we would never find weapons of mass destruction in Iraq. That seems pretty easy right now, but at the time I didn’t know any body who believed the same even among those who did not want us to invade Iraq. Now, arguments about the weapons all going to Syria aside, there apparently weren’t any (go ahead – argue that the handful of decades old buried and useless weapons that were finally uncovered in Iraq were the weapons of mass destruction that were meant – even the Bush administration very quickly said they weren’t).

I still recall watching Secretary of State Powell make his famed speech to the U.N. concerning the weapons and being literally stunned not only at the paucity of any proof in his speech that WMDs existed there, but at the agreeability of so many that his speech proved anything. It truly was a case of the emperor having no clothes. I also remember when the so-called evidence of aluminum tubes came out and wondered how long before it was quietly announced that – oh, maybe they aren’t suitable for nuclear purposes. Oops, that too.

Ironically, I did support our attacking Saddam. Iraq was in violation of many U.N. resolutions which we supported and he was a true bad guy. The evidence was fairly overwhelming (although his trial was a judicial scam – I would have preferred they didn’t tarnish the court system – but, that’s for another day). But, I did not support the war because I thought Iraq had WMDs. I was told then (long before blogging days) that if I didn’t think he had them, I was a fool, to use one of the nicer words. Naturally, I had no proof of the negative, but I thought I recognized the administration behaving in a way administrations do when they have no proof. Unfortunately, the fallout of the lack of WMD overwhelmed any good reason for attacking and left our country in an unjustifiable position, even to the degree that the administration began to pretend that it wasn't the main reason we invaded. It was as much a reason for Bush's incredibly low polling numbers in this country as anywhere else.

And, I wonder, is this the same thing happening with Iran?

I have carefully scrolled the websites of anti-Iranian groups and can find virtually nothing in the way of proof that Iran is making a nuclear weapon. Many insinuations, concerns and conclusions, but no strong evidence.

What isn’t evidence

There are so many things that people seem to think is evidence that Iran is building a weapon. I would rule out the following familiar arguments:

1) Iran openly acknowledges it is enriching uranium. This is true of many countries who are not our enemies too. Uranium needs a lot of processing just to be useful for peaceful energy purposes. But, in order to build a nuke, Uranium needs to be enriched to 97 % purity (if you don’t know what that means, there are lots of tutorials online, but essentially you need a large process by which many centrifuges spin or other methods are used to separate the rare U[ranium]235 necessary for a chain reaction from the plentiful U238. Plutonium is also produced through this process).  Iran has only succeeded, as far as I can see, in purifying Uranium to a fraction of what would be needed to build a bomb and they must also deal with many design and manufacturing problems. On the other hand, it is diligently working on increasing its ability to purify uranium to higher levels, which it quite reasonably claims it needs for medical applications.

Iran is a signatory to the U.N. nuclear proliferation treaty (NPT). It must follow certain rules according to the treaty and Iran claims it has done so. In 2003 and occasionally thereafter, the inspection regime complained Iran was being secretive. I expect they were. Countries that have nuclear programs sometimes are. In the United States, nuclear energy is a federal monopoly and the development of nukes a state secret, even if largely revealed at this point. Israel will not say anything about its bomb program despite that it is well known they exist.

Iran is rich in oil, but has one plant to process oil into petroleum. It purchases most of its gasoline from other countries. Like the U.S., it needs and wants to develop its nuclear capacity. This shouldn’t surprise anyone, nor, of course, is it a fair argument to suggest that they do not have this right (although anyone who says so is verbally attacked). Certainly, other governments don’t make this argument. They claim Iran is trying to make a bomb and that is the problem. Just because the difference is a matter of degree, doesn't mean that it isn't a difference.

None of the above is evidence that Iran is working towards a bomb, anymore than my having an oil tank in my basement is proof that I am opening up an oil export business.

2) Anything that begins with “Everyone knows . . .” or its derivatives. Also, anything that ends with “your crazy,” “you’re a fool,” etc. Examples: “Everyone knows that Iran is about two years from a bomb.” “If you don’t think Iran has a bomb you’re a fool.” These are actually some the most frequent arguments you hear. They are not arguments; they are ad hominem attacks. I admit even a cogent argument will lose some of its force with me when I hear them.

3) That they hid the nuclear plant at Qom from the world. And, while we are at it, that they haven’t exactly been open about a lot of other stuff. Actually, not revealing the existence of Qom turns out not to be a violation of the NPT, under which they still had time to reveal its existence under the NPT. If you kept reading in the international press that Israel was going to take out your nuclear sites out, wouldn’t you hide your plants or wait as long as you could to reveal them to the world? Remember, twice now Israel has acted, pretty much without any real consequences to itself in bombing two of its neighbors.

Additionally, Iranian diplomats have said in the past when caught in lies that they do so because of the sanctions the U.S. has put on them since the 70s when they took hostages. Even if you assumed good faith from Iran, which is difficult to do at this point, I can not logically fault them for that attitude. All countries act in their own self interest. Besides, even if Iran resolved all its nuclear issues, we would still be implacable foes.

4) Ahmadinejad had threatened to wipe Israel from the face of the earth.  The evidence seems to be the on the other side. I admit I worried he said it. At the same time, I kind of wish he had said it because it would confirm my impression of him as a bad guy and make me feel better about our attitude towards him. But this most frequently offered evidence against Iran appears to be untrue.  

And, in fact, since I am no authority on this issue, let me refer you to a pro-Israel, anti-Ahmadinejad site, and what they say. First, let me inform you that they repeatedly state that they are not trying to defend Ahmadinejad, who they consider an anti-semite (as do I):

“Finally, and most importantly, I want to address the world-famous ‘wipe Israel off the map’ quotation. It never happened. This is fact. The text of the speech in question, in the original Persian, is:

این رژیم اشغالگار قدس باید از صفحه روزگار محو شود

Transliteration: Ein razhim-e ishghalgar-e Qods bayed az safhahye rozgar mahw shawad

Literal translation: This regime that occupies Jerusalem must vanish from the page of time.”

http://www.mideastyouth.com/2010/02/13/is-ahmadinejad-an-anti-semite-statements/

Or, go to http://www.juancole.com/2006/05/hitchens-hacker-and-hitchens.html which is the source for the previous quote. Unfortunately, that site's link to the actual speech no longer works and I have failed to find another. But, do a little search and you will find this is fairly well known, even by Iran's foes who wish to argue the facts, not the hyperbole.

I am not the last word on this and don’t want to spread anything that is not true – I’d love to see a Persian and English translation of the speech by a reputable Persian interpreter without a dog in the fight (maybe a Canadien?). But, I think when you have opponents of Iran saying it's not what he said, you have to at least take a second look and consider the possibility it's not true (ironically, for once, conservative talk show hosts and the liberal mainstream media are in agreement - how could it be true?). Feel free to believe it anyway if you want. I know people who were certain President Bush was planning to take over the government if Obama won the election. The delusion of these people (including my friends and relatives) is similar to the delusion of those who believe that President Obama wants to destroy America (however much I find our economic policies dangerous to us). Need I repeat myself – partisanship makes everyone a little crazy. Not the kind of  crazy that gets you institutionalized, but a little crazy still.

5) Anything that draws our attention to historical incidents where we failed to act. What kind of argument is that anyway? Every situation is different and just because the Japanese attacked us at Pearl Harbor, Hitler ate up Czechoslovakia and then Poland, Al Qaeda destroyed the towers and the Pentagon, and a few other things, doesn’t mean anything in terms of this situation other than we need to be vigilant. If we went by historical precedent, we would have bombed the Soviet Union and China and Cuba and lots of other countries, just to make sure they didn’t attack us. We’d be attacking North Korea right now. No one can even begin to guess at the consequences of our having done so.

Plus, we know our intelligence is so frequently wrong. Not because they are any more incompetent than any other group. It’s just the nature of the business. They are trying to find out secrets that other people really want to hold onto. It’s particularly true in the nuclear field. Naturally, Iraq comes to mind. Our belief that they were working on a bomb proved to be completely wrong, at least after some point in the mid-90s. They had stopped long before we invaded. We were also completely surprised by India and Pakistan when they went nuclear. North Korea we figured as they had dropped out of the treaty, but we were not able to find out what they were doing.

An affirmative reason casting doubt on the belief that Iran is looking to build a nuclear weapon

Last year, we had an Iranian nuclear scientist, Shahram Amiri, actually defect to us (which means Iran was absolutely right; we lied about it, I suspect to protect him or others). He went to Mecca and disappeared. Probably make a good story some day. And good for him. He’ll have a much better life and all that. But, if he did know anything that might be deemed a smoking gun – wouldn’t he have told us? You’d think so. And you'd think we know.

But, because we don’t want to be one sided, let me add that the Iranian nuclear program is highly compartmentalized. It was so with our Manhattan project too. There are good reasons for it, and Amiri's defection (as well as others) merely highlights the need for it. But Amiri may have not given us a smoking gun because he doesn’t have one and that doesn't necessarily mean it doesn't exist either.

Any reasons to believe Iran may have an active bomb program? Sure. For one thing, Iran is ramping up the number of centrifuges it needs to purify more uranium. They say that. That doesn't necessarily lead us to conclude it is done to make a bomb, but it may be an indication. But it might also be because they are protecting themselves from attack. Another reason is that they at least for a while turned down what seemed like a pretty nice deal to send their uranium to the West (or Russia) in turn for nuclear rods that would be perfect for peaceful use but unusable to make a bomb. Iran claims they believe their nuclear materials would not be returned and initially wanted the uranium held by a third party until the rods arrive. This isn’t as simple an issue as we’d like, as most of the disagreement between Iran and its opponents seem to be technicalities. But Ahmadinejad has recently said that there’s no problem in concluding this deal and that if their uranium is stolen, they'll make more. Right now, the U.S. and Iran are negotiating over the deal.

My personal opinion (as if you care)? I agree with the CIA. I think Iran has kept the door open to make a bomb some day by furthering its scientific research. Frankly, I would be surprised if any country aware of the political power that having a bomb brings with it and which is a foe of the most powerful nation on earth that has the most bombs, was not doing so. But, unlike most commentators, I recognize my bias against Iran and want to know that there is proof. No, not certainty, but something more than the belief that Iraq had WMDs.

Despite claims that Iran could convert its low enriched uranium - 3.5% - to the 90% required for a bomb within a year and a half, I suspect this is quite probably hyperbole or hysteria meant for political propaganda. If I had all the facts I would not have the scientific know how to judge it any way. Although there may be those who do, we know from long experience that our government is not necessarily guided by facts, even when there are individuals in the government asserting them.

If a deal can be with Iran it should be struck, but not at such a cost to us that we will be sorry economically either.Will Iran cheat anyway and secretly purify more uranim? Maybe. And maybe they are delaying by negotiating as some claim. I have had too many unfair accusations hurled against me in my own life and seen to many incidents of propaganda to view those made against others without a healthy dose of sceptisim. Moreover, certainly any deal President Obama makes will be rejected by conservatives who wish to take back power, as dangerous, and supported by liberals, whether it is a good idea or not. I expect no better from anyone running for office on either side. Sadly, I put no faith in the claims of most politicians or those invested in political faiths.

Sometimes the greatest fears of a country fade away in time. When I grew up, we practiced sitting under our desks with out hands over our head to protect us for when the Chinese bombed us? That was never likely, yet we feared it. In the 80s many believed that we would lose the cold war and that the idea of freedom couldn’t stand a change against collectivism. Way back in the beginning of our country we feared England and France (with some good reasons) and we stayed very wary of our now good buddy England until almost the 20th century.

I will say what might be anathema to others, but the world might not change much if Iran and other undesirable countries get the bomb. That doesn't mean I want them to have them, but I didn't want anyone other than us to have them to begin with. No doubt one hostile detonation anywhere changes that. I have argued before here that the last generation of weapons systems always ends up in the hands of the less sophisticated enemy in time. It has been true of nuclear weapons too and the technology will continue to spread.  My fears for our country are much more directed at our own political and economic foolishness than threats from Iran, including the possibility they will someday possess an atomic weapon.

Let me make myself Richard Nixon clear - I am not suggesting that we take Iran off the radar or take pressure off them. I would greatly prefer they not have a bomb. But, I am suggesting that a lot of what we hear and read is bogus and that we can not trust it. It is even possible that Iran wants us to believe they are more advanced in their bomb research or production. We may indeed lose more by making a deal too much to their favor in order to prevent them from making a bomb which perhaps they never sought. That's the kind of thing you only find out about down the road.

I wouldn’t loosen any sanctions against a country that is holding American as political prisoners without rights, that so often lobs verbal firebombs at us and at our ally, Israel (because he has said other unhelpful things about them) and may in fact be aiding terrorism or attacks on Israel. And, we should encourage their dissidents to revolt as much as their own courage will permit and give them such financial aid as we can.  I support regime change in Iran being the open policy of the United States. But, none of that means we should jump at shadows either.

Of course, if we wake up some day and Iran has tested a device, those who predicted it will be in their glory that they were right. I will say good for them. It's fun to be right. That doesn't mean there was any reasonable proof. And it does not mean it is the end of the world as we know it either.

Sunday, April 18, 2010

Buying guns in Westbury

One of the main purposes of this award winning blog (I have given myself several awards – the most recent  for inventing a cure for physics) is to irritate partisans as much as possible as to the tribalistic and always physiological nature of their political beliefs, which I have harrumphed about endlessly elsewhere.

Many morning I scan the blogosphere, both from the left and the right, and gleefully comment upon the bias of the authors. Generally speaking, my comments all sound like longer versions of – “Good point. Of course, you're right, but your side/tribe does the same (take you pick - vicious, angry, hypocritical, biased) thing and here's why . . . ”.  It did occur to me recently that one of the blog collections I frequently comment on, was not actually publishing any of my longwinded comments which I had hoped would puncture their prickly, one sided thought balloons, but did publish those by writers often described as “trolls,” that is, those whose analysis consisted of name calling and vitriol. What is vitriol, anyway? I’ve been wondering and never looked it up before. I’ve always used the word to mean something like “angry emotions” or “mean spirited verbal attacks” which is fair. But, according to the Online Etymological Dictionary, it originally meant “sulphate of iron,” an ancient compound we still use for various thingees, and later came to mean “glass/glassy” because the compound appeared that way in certain states; only from 1769 do we have record of it meaning “bitter or caustic feelings” due to its “corrosive properties” I did not know that. Anyway, I am hoping their not publishing me is a technical problem and that my fear of discrimination against moderates is just paranoia.

Besides, all my efforts at battling partisans have been for naught as I have had all the success of the world's largest paramecium trying to stem the wrath of a hurricane by franticly waving its cilia in the opposite direction.

But, undeterred, like Sisyphus rolling his stone (possibly the most overused metaphor in history) I keep wacking my head against the wall (possibly the second most . . .)  , and will continue to do so today while I visit the hypocrisy of the left and right in an upcoming constitutional battle.

The battle I refer to is the Supreme Court case entitled McDonald v. Chicago which concerns the question of whether the right of individuals to bear arms, recently announced by the high court in District of Columbia v. Heller. The court considers there the second amendment, which, at risk of sounding like an attorney, states as follows:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” I won’t go over my own analysis of Heller here (I've posted on this in the past - 3/21/08), but it is a reasonably settled issue after that case that individuals have the right to keep and bear arms under that amendment.

A number of questions remained after that Heller. One was, given the rule - what are the exceptions? The Supreme Court has probably cut out exceptions of every right under the constitution, even the free speech clause in the first amendment (see my 5/27/08 post, which considers how we basically only want just so much free speech).

Another question, the one which is coming up in McDonald, is whether or not the individual right to keep and bear arms can be held against the states and its subdivisions and not just the federal government. If the petitioner is successful in overturning Chicago's law, I will be able to travel to my hometown in Westbury, New York, and buy a gun, with little trouble, something I never imagined I would be able to do (or, really, wanted to do either, but that's another story).

The problem is this. There is no doubt historically that the bill of rights was meant as a bulwark against the tyranny of the federal government. Although that should have been pretty obvious, it was not decided by the Supreme Court until more than 40 years after the bill of rights came into being in a case entitled Baron v. The City of Baltimore. The facts are unimportant here and you can look them up if you like. You can argue whether that was a correct decision (why not? I know people who still argue that we never visited the moon) but you cannot credibly claim it is not the settled law.

Of course, any state, can limit its own power through its own constitution. For example, in states where the constitution provides a right to bear arms, well, a Supreme Court decision to that effect regarding the federal constitution won't make much difference. But, if a state didn’t limit itself in its own constitution or laws it was not bound by the federal bill of rights, that is, originally. It could make whatever law it felt like,even restricting speech or forcing religion upon its subjects, and so forth, while the federal government (at least in theory) could not do so.

But, then, it got complicated. After the civil war the fourteenth amendment was passed. It included the following language:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . “

There are two clauses there, which I italicized, the first generally called the privileges and immunities clause and the second the due process clause.

Soon after the fourteenth amendments was ratified, lawyers started trying to use these clauses to find a way to try to limit the states in what they could do. The first cases which dealt with it were the Slaughterhouse Cases in 1873. The city of New Orleans basically made the slaughterhouse industry there into a monopoly (the legislators getting financial consideration for it). It was challenged on both the privileges and immunities clause and the due process clause. The Supreme Court quickly dismissed the idea that states were at all limited by the due process clause (basically saying - what a dumb idea) but took more time deciding that by privileges and immunities of the United States, very little was meant – freedom to become a citizen of any state, to petition the government for redress of grievances, peaceful assembly, the right of habeus corpus, to use the navigable waters of the U.S. and to be protected by our government when at sea or in another country. It was opined by the court that the states certainly would not have agreed to any amendment which would have so limited what they could do in their own jurisdiction. That sounds like a good argument, but we have actually seen many times through our short history when states have voluntarily done just that.

Possibly the most important thing that came out of the case was the dissent by Justice Fields which championed the idea that you had certain rights – like the freedom to work in your chosen field – based on the due process clause. Although the idea would win out in time, ironically, the right to work has never been one of them.

I’m going to skip way ahead in a bit, but I just want to go through a couple more really old cases, the first being U.S. v. Cruishank, which concerned an ugly incident of time after the civil war. A group of black citizens went to a courthouse in Louisiana in 1873, the same year the Slaughterhouse Cases were decided, the state government being contested at the time. They were attacked by a white militia group and were slaughtered - somewhere between a hundred and three hundred of them. A few militiamen were indicted for violating the black’s constitutional rights.

Without going through the whole thing, a very important ruling came out of it for our purposes. The Supreme Court held that the bill of rights (freedom of speech, etc.) was not incorporated in the 14th amendment due process clause and that the second amendment was never meant to be applied against the state governments. The ruling by the court of appeals in McDonald, which is now being challenged, relied in part on the holding in Cruikshank, when it turned down the petitioners attack on Chicago's gun prohibiitions. I would note though, that the Cruikshank court also declared in the next sentence that the right existed but just wasn't dependent on the constitution. It also noted that when Cruikshank was decided, it was not considered under the doctrine of fundamental rights which we are just getting to here. 

In 1884 Hurtado v. California was decided – a case about the state’s right to charge someone with a serious crime without a grand jury indictment. The federal government must have a grand jury to charge someone because it says so in the 5th amendment. But, does that mean the states do too?

Here’s some language from Hurtado:

“Due process refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by 'due process of law'.

It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.”

Despite the high sounding words, it was determined that a grand jury was not one of those rights the state had to protect or at least not violate. Almost as important, Justice John Harlan, who probably should be considered an American hero for various dissents he wrote, wrote one in this case which included the wacky idea that when the fourteenth amendment was passed, it incorporated, through the due process clause right to liberty, the first eight amendments of the constitution. I can't agree with him and I'm in good company (just about everyone). But, momentum was gaining for individual rights to be held against the state.

I’m skipping cases like a madman because you didn’t sign up for a constitutional law class and already I sense eyes narrowing. So I will skip quick as a jack rabbit on steroids to the main point. Heading into the twentieth century, the question kept being asked in various ways by justices what this admittedly hard to define term "due process" meant, and some lawyer or judge got the bright idea that it meant something like this – “a fundamental principle of liberty and justice which inheres in the very idea of free government and is the inalienable right of a citizen of such a government.” That's the way Justice William Moody phrased it in Twining v. New Jersey, a 1908 case).

Judge Harlan kept fighting his battle to get all of the rights of the first eight amendments incorporated into the due process and applied against the states. But, only Justice Hugo Black among the Justices would ever agree with him. But, other judges had no problem incorporating such rights from the first eight as they thought met the fundamental rights test. But, a thorny question kept coming up to – who were these judges to say that this right applied against the states and that right didn’t?  Either Justice Harlan was right that all the rights in the first eight amendments came in or he was wrong. What kind of jurisprudence was it to just pick some rights as opposed to others based on some vague idea that it was a fundamental principle of liberty?

In 1937 the now legendary Justice Benjamin Cardoza took a crack at it. States couldn’t withhold free speech, a free press, a jury trial in a capital case, and so on, because these rights came in through the word liberty in the 14th amendment as they “have been found to be implicit in the concept of ordered liberty”. Well, that clears it up.

To the contrary, the reason a right like that of a suspect to a grand jury did not get this elevated status, he wrote, was because it was not “not of the very essence of a scheme of ordered liberty”. Or, put another way, this by Justice Felix Frankfurter, due process kicked in when the violation of a right so “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Just so you get a better idea, this was in a case where a suspects stomach was pumped against his will to induce vomiting so they could and did find the morphine pills he had swallowed.

Of course, you can make a lot of sound arguments against that. How about this one? The 14th amendment was passed so that southern states which had slavery couldn’t treat blacks like non-citizens and had to give them the same rights everybody else in the state had. If the drafters of the 14th amendment had wanted to the bill of rights to apply against the states, or even some of them, they would have said something like – “The states may not deprive any person (or maybe any U.S. citizen) of free speech, the right to a jury trial, blah, blah, blah” or just "The rights in amendments 1-8 apply against the states." Why wouldn’t they come up with that simple wording or something just like it instead of putting in coded phrases that no judges back then seemed to think existed? It makes no sense.

Frankfurter himself wrote in another case: "Some are in and some are out, but we are left in the dark as to which are in and which are out. Nor are we given the calculus for determining which go in and which go out. If the basis of selection is merely that those provisions of the first eight amendments are incorporated which commend themselves to individual justices as indispensable to the dignity and happiness of a free man, we are thrown back to a merely subjective test. If all that is meant is that due process contains within itself certain minimal standards which are ‘of the very essence of a scheme of ordered liberty,’ . . . Putting
upon this court the duty of applying these standards from time to time, then we have merely arrived at the insight which our predecessors long ago expressed”.

Actually, I don’t buy that either. All Justice Frankfurter really did was find a different way to phrase the same subjective test now dressed up modern judge's impression of the drafter's original insight.

Don’t get me wrong. I love that the states can’t take things like free speech, etc. from us. I just believe that the idea that it came through the 14th amendment is so much hooey. But, unlike my legal brethren, I believe that some rights should be held much higher than others, not because they are “God given,” as many claim, or were the intention of the founders, but because they are really, really good ideas and they do make us free without hamstringing the some kind of civil order. In fact, I would say they help us have order. It is one reason that I believe (alone in the legal world, apparently) is that we have a written and an unwritten constitution. Because whatever judges say about the law, this is what they have done.

Now, lets speed up all the way to the McDonald case now before the court and, ask is the second amendment one of those rights without which we cannot have ordered liberty? Is it so rooted in our history and traditions so as to be ranked as fundamental? Despite the fact that Justices Harlan and Black never got their way, virtually every right encompassed in those first eight amendments have been incorporated as fundamental rights excepting grand jury and the second amendment. Why not them too?

We all know that most conservatives are going to say "yes it is fundamental" and most liberals "no it is not". I personally think as a policy decision its a good idea for people to access to guns. In other words, if there are going to be limits (and I think few judges would think there should not be some), they shouldn’t bar you from keeping them as a general rule if you are a non-criminal or non-certifiable adult, and when you are in your own house or car, the stronger your right should be. However, I find it difficult to believe we can’t have “ordered liberty” without gun rights, because the presumption for a long time was that states did have the right to ignore the second amendment (I can hear angry argument, but I disagree), and the country never fell apart as a result of it. Besides, the few armed insurrections tried in this country failed.  I can’t see it as fundamental or traditional as free speech, freedom of religion, and the various rights we have against the government depriving us of our life, liberty or property. Indeed, I think the idea that it even means what Heller says it means is highly debatable as a matter of law, even if I like the result.

Moreover, the idea that if we have guns, we can protect ourselves against government tyranny with them in some revolution is probably, at this point, a little too late. Even if “we” had a lot of guns, and better ones than the government, the military has the training and history and culture of following orders, warfare, etc., and, as a rule, we do not. In fact, thanks to our first amendment freedoms and access to the courts, we haven't needed it.  I sincerely doubt armed revolution against our "criminal class" of representatives is going to happen here in the land of IPads and facebook until those luxuries are taken away. And, as we know, those who’ve tried it in the past usually don’t do so well. The example of America, separated from Britain by an ocean is actually a bad example.  And please don’t say look at Kyrygstan because – seriously, there’s a big difference between taking over the government in Bishkek and that in Washington, D.C.

The other day I caught a few minutes of a southern state militia leader being interviewed by Chris Matthews. Matthews was doing his best to try and get the guy to say something provocative and foolish. But, finally, after answering the question several different ways, the militaman said (I'm paraphrasing) “What are you talking about - fight the federal government? Who said that? We’re not crazy. We’d get slaughtered.” The the idea of obstructing the power of the federal government with a state militia was basically symbolic. Not everyone would take that approach, of course. And, you might think he was lying.

There are other reasons having guns is a good idea though. One, just the basic idea of liberty and the idea that citizens can be responsible not to shoot each other or rob a bank is a good one. A culture of resolving problems without violence is much more important than keeping guns from otherwise good citizens and that certainly needs work in the 21st century. Very few Americans who own guns are ever going to shoot at someone. Self defense is another good reason. I don’t own a gun. If I ever have a midnight visitor I plan on throwing a knife at him. Most likely I will first scream like a young girl seeing a spider, then throw the knife, get it stuck in the ceiling before putting my hands up, but all the same, I’d probably be wishing I had a gun about then (like most of my neighbors).

Here’s the big irony with McDonald as I see it, because my focus is usually on the hypocrisy and demagoguery of partisanship. Since the idea that rights contained in the bill of rights could be applied against the states because they were "fundamental" was first suggested, it has been most often applauded by the left – especially in the great expansion of criminal rights since the 1960s. And, not surprisingly, it has been generally attacked by the right, who see it as more judicial activism and an invasion of the democratic and legislative process embodied in the constitution.

But, as so often happens in litigation, the left and the right will throw out their ideology like so many old newspapers if it means getting what they want. They do it all the time. Bush v. Gore is a perfect example as both sides shifting their views of federalism as on a swivel, so that the right was screaming for federal intervention and the left was saying – that’s ridiculous. They did it a few years ago in an abortion case when the right wanted a federal law which by its very definition invaded the areas they are usually screaming is an abuse of the commerce clause (as noted by Justices Scalia and Thomas); and the left, which was adamantly against any prohibition on abortion, lost the case by not raising the defense, because they feared if they succeeded in doing so, they’d be stuck with that restricted view of congressional power, which they otherwise rely upon.

Here, ironically, the right is going to be arguing that the second amendment is a fundamental right even though they’ve consistently mocked that idea and the left is going to be arguing against it, pretty much for the first time. Of course, there are always exceptions to all of this, like with any stereotype, and some on both sides have independent ideas, but it will be fairly accurate here.

A few last points about this case. First, the lawyer handling it, Alan Gura, who was also one of the principal attorneys on the Heller case, is actually only using the fundamental rights argument as his backup. His primary argument is that which was knocked down seemingly forever in the Slaughterhouse cases and Cruikshank so long ago, that the right is protected against the state by privileges and immunity. In fact, he specifically asks in his brief that the Slaughterhouse cases, Cruikshank, and another Cruikshank-like case Presser v. Illinois, be overturned. I will be very surprised if the justices go along with him on this one as P & I has never really really worked before. Indeed, if it worked, it would have to be on the vote of five conservative judges who would be opening the doors to claims of new rights and of a limiting of state perogative like never before. I don’t think they want to do that.

Indeed, the whole idea of finding gun rights "fundamental," presents the same problem, particularly for the conservative judges. For if the conservatives hold it applies here, they must forever give up some of their strongest arguments against judicial activism. However, as fundamental rights is already settled law with almost every other right in the bill of rights, they may be more likely to do so, thinking, why should OUR preferred right be one of the few left out. Indeed, I believe there is a good chance they will take this approach. However, I also believe they will also make it clear that some regulation is appropriate.

Second, one of the ironies of this case, is that in attacking Cruikshank, the petitioner is able to champion minority rights based on the horrifying facts of that case and also tie gun prohibition to white supremacy and minority self defense. This is quite a coup for the right in a sense, as for several decades they have labored to rehabilitate its public image as anti-minority (some deserved, some not).

My last point is just that I hope someone explains the law of fundamental rights to Justice Sotomaior, who so mangled the definition of it at her confirmation hearing, that I am positive she did not understand it at all. I'm being a little facetious, as she is obviously bright, and I bet knows all about it now, having suffered through that embarrassment at her hearing.

I look forward to the decision. I never tire of bashing shameless hypocrisy from politicians or the bench and expect to get the opportunity here. I am rarely disappointed by lack of opportunity.

Sunday, April 11, 2010

A visit to a unilateral virtual book club

You know, I was writing my blog post today – on a history topic, when I suddenly said, “Author of this blog, how is it in three and a half years, you write so infrequently about fiction?” It was a good question. I think it is because I slowly stopped reading much fiction about ten years ago when my favorite authors, mostly sept/octogenarian British authors, started slowing down to one book or so a year, or, at least their work that I wanted to read. I tried to like more modern novelists, but, whenever I’d be reading one, I’d often catch myself looking at a history book longingly. So, I came close to stopping - some years I've read none.

But, I love fiction. When I was moving to Virginia from New York, I was trying to keep myself to one big truckload. I had 32, or was it 34, cartons of books as it was, to pack for the ride, so I gave away hundreds of paperback novels which I thought I would never read again. It wasn’t easy, book obsessed person that I am. You can read about that little disaster in my March 6th, 2007 post - the sole work of fiction I've written for this blog.

Still there was another group of books that I tried to give away, but couldn’t -- for example, my beloved series of Nero Wolfe novels I promised to a friend, and then welshed on (Hey! How come that one escaped the sensitivity police’s hawk-like notice? It's just like saying “I Jewed him down on the price," but no one gets up in arms about it. I know there are Welsh descendents in our country - maybe they aren't culturally sensitive as a group.)

So, to prepare for this great post, I walked into my bedroom, where I have one six foot bookshelf filled with the novels I couldn’t bear to part with without suffering great pain, and have pulled out a bunch to discuss. Doing this actually seems to fulfill one of the underlying purposes of this blog, which is the less than noble enterprise of just giving me a chance to talk about books without the numbing experience of reading those I don’t want to read and then discussing them with people I probably don’t want to discuss them with in a real book club (I have a relative who at one point was a member of six book clubs. He says he likes the social aspects of it. I'd rather read a book, thank you very much).

Since I need the semblance of a theme for this (an obsession for which I can't fathom a purpose), these are great books of enduring reputation, but which many a casual modern reader might overlook during visits to Barnes & Nobles. But, to be more cynical, it is really just about some books I love I'd like to run by you and see if there is any interest. Why am I suited to do this? – no other reason than in my life of spectacularly few accomplishments, at least I can say I’ve probably read a thousand novels (I’m guessing, but “probably” is fair) and maybe three thousand books or more all told. I know that sounds Wilt Chamberlainish - remember his claim of having been with 20,000 women - but, I have hundreds of books in my house right now, probably six or seven, gave away hundreds more, and I know that is a fraction of those I've read (and no, I'm not bragging, because reading is easy; it's writing that's hard - there are thousands more for which I wish I had time). Ironically, I read much less now than ever, even though I have more time. I doubt I finish thirty books a year as I spend much more time playing with languages and researching than reading. As for novels – if I finish five a year now, it is probably a lot. I may start a few more than that, but time is too short and I don’t give one I don’t like more than 50 pages anymore (it used to be a hundred). Here we go:

1) For many years now I have sung the praises to whoever will listen of The Monk by Matthew Lewis, a contemporary of Mary Shelley, Byron, Goethe, The Brothers Grimm, and so on. Along with Frankenstein, it is one of the two great Gothic novels on my shelf, and probably any shelf. When it came out it caused a sensation and the author was subject to severe criticism. It was not only shocking and violent but it aroused great emotion among the simpering elite with its extremely unorthodox handling of sex for the time. Even now, over two centuries after it was written, I found myself deeply engrossed in the sexual drama and I didn’t escape being shocked, even in this age of anything goes. It is a startling book and your emotions will run the gamut, even to deep disappointment that what you expected to happen, didn't. The author did not invent the Gothic novel – he was actually imitating Ann Radcliffe, but he was just 19 at the time he wrote it, which is impressive in any era.

Of course, it's a gothic novel and that means melodrama. I read a few pages of it today and I have to admit some of it reminded me of really bad episodes of Smallville I’ve seen on tv lately. Yet, remember, it is Lewis, Radcliffe and Shelley who are being imitated still, daily, on television, in other books and in movies. Although The Monk is a brilliant book, still published and loved by some, it is one I can’t understand why it is not more famous to the general public. It is, as much as anything, great fun, despite the terror and topics. It would make an electrifying movie, but, possibly - it is just too uncomfortable. Here’s a quote from it. Picture the organ music as you read about the villains plotting the abduction of the heroine:

In a few days She will be removed to the Palace of her Relation, the Marquis de las Cisternas, and there She will be secure from your attempts. Thus during your absence have I been informed by my Spies, who are ever employed in bringing me intelligence for your service. Now then listen to me. There is a juice extracted from certain herbs known but to few, which brings on the Person who drinks it the exact image of Death. Let this be administered to Antonia: You may easily find means to pour a few drops into her medicine. The effect will be throw her into strong convulsions for an hour: After which her blood will gradually cease to flow, and heart to beat; A mortal paleness will spread itself over her features, and She will appear a Corse to every eye. She has no Friends about her . . . “

2) It is 1926. Eleven years before Tolkien published the Hobbit an English civil servant named E. R. Eddison came out with a remarkable fantasy novel by the name of The Worm Ouroboros. It is not grounded in linguistics and a deep understanding of mythology and history the way Tolkien’s work would be in coming years, but it itself a rollicking work of sword play, gallantry, knighthood, fantasy, magic, political maneuvering and just plain evil, and written in a unique style by a master craftsman.

To show you just how good it is, let me quote from Tolkien himself: “I read the works of Eddison, long after they appeared; . . . In spite of all of which, I still think of him as the greatest and most convincing writer of ‘invented worlds’ that I have read.” Tolkien was a very tough critic, who would even pan some of his friend's efforts, did not like the names Eddison used for used for characters and places (but that was almost everything to the linguistically fanatic Tolkien - he really didn't seem to like almost any author's "nomenclature" other than his own) and he also said he disliked Eddison's personal philosophy. But, especially given all that, this has to be the gold standard for recommendations for any fantasy writer there ever was. It's like Shakespeare saying he thought you wrote the best plays.

Tolkien was right. Eddison was that good at story telling and picturesque writing. There is only one small flaw. He could have put his characters in the North of Europe or even in an imaginary remote land in Africa as others had done before him. For some reason he decided to put the story on the planet Mercury, and most unfortunately, the first 20 or so pages is at least partially taken up with drivel as a stuffy British adventurer enters a dream state and is transported there (don't worry; he quickly disappears forever once the action starts). But get through that, because the rest of the book is just "rip roaring," like the opening sequence of Raiders of the Lost Ark, except it is a war between witches and demons and the like instead of Nazis and Americans. I set aside The Iliad and The Lord of the Rings. And I haven’t read War and Peace. But, I doubt any other war in literature has been written so engagingly, beautifully and playfully. Here’s a taste of Eddison. All I did was open a page at random. Feel his language roil your senses as he merely sets a scene:

While they climbed, white wispy clouds which had gathered in the high gullies of Ailinon in the morning had grown to a mass of blackness that hid all the mountains to the west. Great streamers ran from it across the gulf below, joined and boiled upward, lifting and sinking like a full-tided sea, rising at last to the high ridge where the Demons stood and wrapping them in a cloak of vapour with a chill wind in its fold, and darkness at broad noon-day. They halted, for they might not see the rocks before them. The wind grew boisterous, shouting among the splintered towers. Snow swept powdery and keen across the ridge. The cloud lifted and plunged again like some great bird shadowing them with its wings. From its bosom lightning flared from above and below. Thunder crashed on the heels of the lightning, sending the echoes rolling among the distant cliffs. Their weapons, planted in the snow, sizzled with blue flame.

Now, if you ask me, he writes as well or better than Tolkien himself (who could, after all, be quite melodramatic), although the Lord of the Rings still stands alone for reasons I've written about here too many times to go into now. But, in case you aren’t into fantasy at all, we’ll move along.

3) In my mind, no American writer of fiction was as great as Mark Twain. I won’t bother with the encyclopedia like recital of his works, or even go on about his endless supply of aphorisms and witticisms which I frequently quote – all that and more you can find on the web.

Naturally, you know Twain is as famous as they get, so you might wonder why I include him. It's because so few people I know seem to have gotten around to having read his literal roasting of mankind in his unparalleled Letters from the Earth (I actually took a poll in 1984 or '85 when I first read it. I forget how many people I asked, but not one of them had read it). It not only wasn’t published in his lifetime, probably because he liked having a career, but even in 1939, when it was first ready for publication, his daughter and literary executor protested it would give people the wrong idea about him and they pulled it. It was not until 1962, when she was still alive, that she gave in.

I’ll muddle into Satan’s first letter home from his banishment on earth and then jump around a little:

This is a strange place, an extraordinary place, and interesting. There is nothing resembling it at home. The people are all insane, the other animals are all insane, the earth is insane, Nature itself is insane. Man is a marvelous curiosity. When he is at his very very best he is sort of low grade nickel-plated angel; at his worst he is unspeakable, unimaginable; and first and last and all the time he is a sarcasm. Yet he blandly and in all sincerity calls himself the “noblest work of God.” This is the truth I am telling you. And this is not a new idea with him, he has talked it through all the ages, and believed it. Believed it, and found nobody among all his race to laugh at it.

Moreover – if I may put another strain upon you – he thinks he is the Creator’s pet. He believes the Creator is proud of him; he even believes the Creator loves him; has a passion for him; sits up nights to admire him; yes, and watch over him and keep him out of trouble. He prays to Him, and thinks He listens. Isn’t it a quaint idea? Fills his prayers with crude and bald and florid flatteries of Him, and thinks He sits and purrs over these extravagancies and enjoys them . . . .

* * *

For instance, take this sample: he has imagined a heaven, and has left entirely out of it the supremest of all his delights, the one ecstasy that stands first and foremost in the heart of every individual of his race—and of ours—sexual intercourse!


* * *

His heaven is like himself: strange, interesting, astonishing, grotesque. I give you my word, it has not a single feature in it that he actually values. It consists utterly and entirely—of diversions which he cares next to nothing about, here in the earth, yet is quite sure he will like in heaven. . . .

I could go on all night just with this one scrumptious book, but I'm sure you get the idea, and on we move to . . .

4) Jim Thompson! Who, you ask? Let me give you a critic's comment on After Dark, My Sweet (the Washington Post review) – “If Raymond Chandler, Dashiell Hammett and Cornell Woolrich could have joined together in some ungodly union and produced a literary offspring, Jim Thompson would be it.”

I can’t tell you why Thompson’s name is not known today like Chandler and Hammett (Woolrich was great – he wrote the short story, for instance, that became Rear Window – but he was not Thompson either) even though a couple of movies have been made from his tough, scary, enervating, pulp fiction works. His books are really short too, so you’d think everybody would want to read them. Perhaps Chandler and Hammett are the kings of the genre – I can live with that. I loved those two guys – probably read every single book they've written. But, the truth is, I find Thompson  far more riveting.

I have three Thompson novels on my shelf, The Criminal, probably his most acclaimed work - The Killer Inside Me, the second filming of which is supposed to come out this year and After Dark, My Sweet. I don't own The Getaway, which has twice been made into a movie. But, the most memorable thing he ever wrote for me was a short story or novella (unfortunately, the name of it escapes me) that starts with the protagonist waking up, tied to a bed, legs spread open, with a growling pit bull poised between them awaiting his owner’s command. Now that’s a way to start a story. I'll go light with the examples, because I know I can't give you an idea of his style as well I can the other selections here. That's because Thompson's books are driven by the plot (although much less complicated than Chandler's) and the characters, mostly bad guys, gals and assorted crazies, and it takes time to get to know their idiosyncracies and viciousness, but those are the elements that make it so good. But, there was always a scariness about the people in this story, who are just a bit off:

“[A]ll at once I heard Johnnie’s voice:

‘Hello, you lovely people. I’m certainly having a fine time, and I wish you were here. See you soon.’

Yes, it was Johnnie, speaking that sharp smart-alecky way he used a lot. I jumped up from the bunk and started turning around and looking up and down and sideways. And here his voice came again:

‘Hello, you lovely people. I’m certainly having a fine time, and I wish you were here. See you soon.’

Thompson is not for the feeble hearted or the politically correct who think being a good person means you can’t enjoy reading about horrible people doing terrible things to each other. Let me give you just a bit more so you can see what I mean:

“No, baby,” – my lips drew back from my teeth – “I’m not going to hurt you. I wouldn’t think of hurting you. I’m just going to beat the ass plumb off of you.”

I said it, and I  meant it and I damn near did.

I jerked the jersey up over her face and tied the end in a knot. I threw her down on the bed, yanked off her sleeping shorts and tied her feet together with them.

Can you even really tie someone's feet together with sleeping shorts? I better leave off there before the thought police get me for violating the imaginary violence against women's act. But, don’t think Thompson was a psycho misogynist; many characters get their just desserts - even those who don't richly deserve it - in his stories, not just the women. He takes on violence and cruelty in a way that other pulp fiction writers Chandler and Hammett would not have the stomach for and he does it with flare. Andrew Vachss is his true literary heir these days, and Quentin Tarantino on film.

5) There could be a fourth to my Hammett/Chandler/Thompson trio, but this guy really is in a class by himself, and the opposite of the hardboiled Thompson approach. I’m referring to the utterly unique Damon Runyon, probably now most famous for his short story that led to the best musical ever - I said EVER  – Guys and Dolls.

Runyon, also a sports writer for Hearst, didn’t just write about gangsters, he created a genre for them – the colorful Broadway tough guy mini morality play – and filled it up all by himself, because nobody else could really duplicate the way he wrote, almost entirely in the present tense and with his own imaginative slang. Runyon knew gangsters and gamblers, liked them and created a fun world around them.

Unlike Thompson, whose stories were propelled by the action and the characters, in Runyon’s world, the characters are mostly of the same type, big dumb goons and sweet, but not so classy broads, with few exceptions, but it is the dialogue that sparkles and lights up the page. Here are but a few examples. First, my favorite, from the classic The Idyll of Miss Sarah Brown (the main inspiration for Guys and Dolls):

“Son,” the old guy says, “you are now going out into the wide, wide world to make your own way, and it is a very good thing to do, as there are no more opportunities for you in this burg. I am only sorry,” he says, “that I am not able to bank-roll you to a very large start, but,” he says, “not having any potatoes to give you, I am now going to stake you to some very valuable advice, which I personally collect in my years of experience around and about, and I hope and trust you will always bear this advice in mind.

“Son,” the old guy says, “no matter how far you travel, or how smart you get, always remember this: some day, somewhere,” he says, “a guy is going to come to you and and show you a nice brand new deck of cards on which the seal is never broken, and this guy is going to offer to bet you that the jack of spades will jump out of this deck and squirt cider in your ear. But, son,” the old guy says, “do not bet him, for as sure as you do you are going to get an ear full of cider.”

Everything Runyon wrote makes it seem like you were walking into a live version of a joke that starts off with "Two guys are sitting at a bar, and . . . " but it goes on for pages without ever getting stale. Here’s how he starts So You Won’t Talk!:

It is along about two o’clock of a nippy Tuesday morning, and I am sitting in Mindy’s Restaurant on Broadway with Regret, the horse player, speaking of this and that, when who comes in but Ambrose Hammer, the newspaper scribe, and what is he carrying in one hand but a big bird cage, and what is in this bird cage but a green parrot.

Regret, the horse player, appeared in more than one story. He is the avatar for Runyon’s best friend until he actually got bumped off in a hit one day. But, why dwell on bad news when Runyon is always making me smile. Here’s a conversation form Barbecue:

Anyway, when he sees there is no hope for him in a musical career, Homer has to find something else to do and what he does is the best he can, which is one thing and another, and he is explaining to me in the Sharkskin Grill that even doing the best he can, he is not doing so good, when in comes a fuzz by the name of Finnegan, a fuzz being a way of saying a plain-clothes copper, who steps up to Homer and speaks to him as follows:

“Homer, the chief of police will consider it a favor if you will kindly bid us farewell.”

“Why?” Homer says. “What is his idea?”

“Does the chief of police have to have one?” Finnegan asks.

“No,” Homer says, “by no means and not at all. I am just wondering.”

“Well,” Finnegan says, “when he first mentions your name he requests me to bring you in because it seems a large touch comes off in West Palm Tuesday night and right away the chief thinks of you. But,” Finnegan says, “I remember seeing you in the police station all night Tuesday night trying to square that traffic violation, so you cannot also be in West Palm and when I speak of this to the chief he says all right but to suggest your departure anyway. You may thank me if you wish.”

How can you not like these thugs?

Like the spirits of Christmas, I was hoping to do this post all in one night, but time being what it is, it flew, and I shall have to split it in two like Solomon’s baby, and give you the rest in the merry month of May. Back to history next week. But, I’m glad I rustled through the fiction a bit, for old times sake.

Sunday, April 04, 2010

Political update for April, 2010

Last week I wrote about what choices you might make if you find a law unconstitutional or reprehensible. It was a fairly abstract piece centering on Thoreau's and Plato's philosophies. What made me think of it was the health care reform act which has generated so much anger and controversy over the course of the last nine months or so in particular. The subject is too big to treat comprehensively except in a book, or, at least, a very long magazine article, and I have no such intentions (sighs of relief). I just want to putter around about some of the issues.

What’s everyone so excited about? For one thing – it is a BIG plan (and we know what happens to the best laid plans of mice and men). I forget if it was Boehner or McConnell who said during the health care summit that “we” don’t do large scale legislation very well and I agree. It is the same utopian dreaming that countries go through all the time. It doesn’t work because even collectively, we lack the ability to predict the future or understand unintentional consequences of legislative acts. These unintentional consequences tend to be “bad” consequences. The reason is they always end up costing more money than we have to spend.

Last week I was being lambasted by an Obama supporter who is either a self described liberal or should be, about my lack of appreciation for the new law. “You just think that poor people shouldn’t have insurance,” she said. Naturally, I responded that yes, of course, I hoped everyone under the poverty level dies slowly and painfully, because all people like me who oppose the legislation are evil by nature and I just can’t help myself. I then asked her to name the big government program in our history that was financially solvent, and, of course, there isn’t any good answer to that. I didn’t even have to go to ask if she realized a dollar is now worth less than 1/20 what it was a century ago or if she was aware that pretty much all macro-economists now predicts some kind of financial disaster sooner or later, far beyond what we have had before. At that point I think she asked me how come I didn’t realize how conservative I was and the conversation broke down (it’s okay, sports fans, as usual I was called a "liberal" within a couple of days too by someone else when discussing the same subject – health care - partisans often believe they "own" all the arguments and you must be one or the other).

But before she couldn't take it anymore, she asked me if I didn't believe the CBO that this would reduce the deficit over ten years. After all, they are non-partisan.  My answer was, of course not.  The CBO doesn't pretend it can make accurate predictions on cost over time in an untested area. They just claim they are no worse at making economic predictions than blue chip companies and the administration. If you don't believe me, go look at their website and read their own analyses.

While the CBO, whose main mission is budgets, and other economists have a wealth of data concerning things like unemployment, GDP and so forth, and can make reasonably accurate predictions over the short term, there is no real data for scoring this huge bill of thousands of pages which creates entirely new situations. The variables are simply too many and too large. They can only score it based on what information they are given and upon a set of "critical assumptions". If the assumptions are wrong, then they are wrong. The CBO is no more capable of predicting the future than anyone else. 

Although looking at history is not a safe predictor either, sometimes evidence taken from it can be very persuasive on general principles (e.g., if you fight a war, it is a safe bet based on historical evidence that carefully laid plans will go awry). If predictions for the viability of social security and medicare were so far off - if the state of V.A. services are so deplorable, if states are starting to cut down on medicaid because it is unworkable, what chance does this have of being any different? There are only a few ways it can be made to work and none of them are good - raise taxes dramatically, the single payor solution (with European level taxation to boot) or cutting or rationing services. Any of those ways, you know who pays the bill. We do. We always pay any increase in spending through taxes or the effects of inflation. It is always that way when government lends a hand. It is the same when government taxes an industry. If they are a viable industry, then customers will pay that tax indirectly too.

Plus, as we know, the bill passed begins taxing this year and many benefits don't begin to take effect for several years (some have taken place immediately). Although it is not entirely true, the number usually mentioned is 10 years of taxation and six years of benefits through 2019.  This is not denied by proponents. It leads one to conclude that the measures cannot pay for themselves on a yearly basis.

The idea, of course, that through control of fraud and waste, there will be great savings is one we should all laugh at. There can never be enough government oversight of real life, even with 16,000 new IRS agents (all who will need health care benefits and pensions) to guard against fraud and waste. This is simply part of life and it cannot be legislated away. Besides, as is so often the case - it is the government which is a major player in the fraud and waste itself. Whose watching them?

There are a number of real problems everyone knows needs to be addressed, like millions of people without insurance, the problem of pre-existing injuries (you have a job - you get sick, say cancer - you get fired - 30 days goes by - you get a new job - the insurance for your new job doesn't cover your cancer treatments. Uh-oh) and so forth.

Of course, the last people we can look at to tell us what is going to happen is anyone in government, because we know the legislators did not read the thousands of pages and do the study necessary to even take a reasonable guess at what will happen.  How often do you read a 2700 page book, which doesn't even state  the law itself, but often just what the changes to existing law will be, and understand it completely? Let me guess - never.  I seriously doubt that anyone, ANYONE, has read this new law enough and had the time to think about it enough to understand it well enough to guess. That includes those who wrote it. Should that be the way we legislate?

Last, I do not have that big of a problem with the procedures taken to get the bill passed, although the conservatives made a lot of headway politically with it. For one thing, neither reconciliation of the primary bill was used nor was the Slaughter rule invoked at the end.  The Democrats simply got enough votes in the house to pass the bill when the Stupak group (anti-abortion Democrats) caved.  As I always say, Republicans and Democrats, liberals and conservatives, all get what they deserve because when they are in office they use whatever tactics they can to win, even ones they've complained about in the past.  I don't want to hear liberals/Democrats complain about the filibuster, when they've used it themselves when in the minority. I don't want to hear conservatives/Republicans complain about reconciliation or similar short cuts when they do it themselves when they are in the majority. Any of these procedural problems can be easily fixed if both sides agree to do away with them or modify them in 2017, the first year where there will not be an incumbent president elected - in other words - no one can say who will be running the show. Neither side wants to do this. They never do because it is all partisan blather. They just want to take advantage when it is their turn and to complain when their ox is getting gored.

That being said, the outright institutionalized bribery of legislators we've seen in connection with this reform, by giving their states huge sums of money on the backs of the other states - e.g., Nebraska, Louisiana, Vermont, in order to by their votes, disgusted me, disgusted the nation as a whole, and even disgusted some legislators. It was bad governing at its worst. I believe it is the most significant reason Scott Brown was elected a Republican senator from Democratically controlled Massachusetts and I believe it will be remembered when November rolls around this year.

Last on the cost aspect of the law - what about the similar Massachusetts' health care experiment? Well, apparently, they've lost a tremendous amount of new jobs which have literally gone across state borders, I've read about 16% of new start ups; their hospital costs were estimated at 55% above the national average; and the majority of citizens think it isn't working out so good. Maybe the administration should have taken another look at how that was going before they pressed a similar plan upon us.

Constitutionality. A number of states with Republican leadership have filed suit attacking the legislation on constitutional grounds. I don’t believe it will win even with a slight conservative majority in the Supreme Court. The main attack seems to be that the mandate to buy insurance is an unconstitutional abuse of the commerce clause permitting regulation of interstate commerce.

Let me do a one minute commerce clause job for the uninitiated. The commerce clause is found among the powers of congress in the Constitution. It permits congress to regulate commerce AMONG the several states.

What that actually means according to the courts has been growing like bamboo for the past 200 + years. There was a time when the expenditure of federal funds for a project that did not cross state lines was extremely controversial.  Nor was congress permitted to regulate matters that took place purely within a state. That changed completely a long time ago. Probably the most famous example of the new thinking came during the second world war when poor Mr. Wickburn was fined and ordered to burn excess wheat he was growing for his own use on his farm because the federal government was trying to drive up the price of wheat and had limited production of it. After that, the gloves were off. Seemingly now, everything comes under the commerce clause. Congress can even regulate things that are completely within one state or one property if they think it might affect interstate commerce or be of a subject that congress has tried to regulate. That leaves precious little out. Two Supreme Court cases in the 1990s seemed to draw a line in the sand when federal laws concerning guns in school zones (U.S. v. Lopez) and abuse to women (U.S. v. Morrison) were ruled unconstitutional as they did not concern commerce and invaded the state's police powers.  But, both of those cases were controversial right/left decisions and the court stepped back in Gonzales v. Raich when even Justice Scalia said the federal government could regulate marijuana grown and used in one state because it was part of an interstate congressional scheme of law enforcement. But, actually, those three cases were outliers and the fight had long, long been won by federalist forces. There is very little that courts will not find within congress’s reach.  Health care is, if nothing else, an interstate concern, at least as the law has been read for 60 some odd years. 

Moreover, the idea that the health care mandate - the requirement that you by insurance or pay a tax or penalty, is somehow more restrictive of freedom than the many taxes we are required to pay, including the income tax, or the governments right to draft you and send you to war, is not going to fly. I'm not getting into here whether this is all ultimately good or bad, but I don't believe the opponents of the law will find relief in the courts. Sure, there is a body of conservatives and libertarians who would like to turn over many commerce clause cases, but, it is not realistic to think that this is going to happen.

There is another way to attack the law on constitutional grounds although I haven't read any commentary on it yet. The constitution states that the government may not have a capitation (head tax) or other direct taxes, like property, unless it is apportioned among the states.  The mandate to purchase insurance is not an income tax. Everyone is either required to purchase insurance or to pay a penalty to the government (this is what the 16,000 new IRS agents are supposed to do). That means everyone is being taxed and it could be described as a capitation or direct tax Thus, arguably, it should be apportioned among the states. If the mandate falls, everyone knows, the whole scheme falls on its face.

But, admittedly this is a complex issue. Proponents of the bill will claim it is not a tax (although the bill says it is a tax) or not a direct tax. As I've harangued about before, you know that what is in the constitution is not so important anymore.  We have had an oral constitution for a long time, and, in my humble opinion, most people like this to some extent (even the conservatives).  However, I do believe there is a better chance to succeed with this argument than with the commerce clause argument stated just above. I do not know that it is even being put forward yet.

There is a third constitutional concept I will have to look into more, as I don't have enough information yet, but if this health care plan requires state officers to enforce the plan, or make a regulatory scheme itself to enforce it, that would quite possibly be deemed a violation of separation of powers doctrine.

And, of course, constitutional issues often raise hypocritical attacks by both sides. Conservatives want us to believe that they care about state power and that the federal government shouldn't be able to order citizens of the various states to buy insurance or pay a penalty. But they are every bit as much for expanding federal power as liberals when it suits their cultural, military or political purposes (marriage, euthanasia, drugs, electoral laws, domestic disputes, the peace time army and even abortion come immediately to mind). And liberals want you to believe that this legislation is cost effective, even though you would need never to have read any history for the last one hundred years to believe it, or think that for the first time in history we will find a cure for fraud and waste.

Naturally, the conservatives are now very concerned about the national debt and the deficit and the liberals are not. Is it me, or were both sides talking out of the other side of their mouths when the Bush administration was still in power?

Political
“How’s that hopey-changey thing working for you?” I heard Sarah Palin read that line as she addressed a Tea Party convention. Both liberals and even moderate conservatives seemed appalled about those words as if she really spoke like that. What she was doing, if you don’t realize it, was making fun of the pollyannish views Obama seems to radiate. If we just believe - good things will happen. It is the same thing Hillary Clinton, Joe Biden and others on the left were making fun of back in the day before they lost and joined his team.

Although it has probably reached a plateau for a while, the debate has dramatically affected Obama’s popularity. Take a look at this poll I pulled off of The Rasmussen Reports (nowadays, all polls are also accused of being partisan in design and you have to choose who you listen to carefully. Rasmussen has a long and deserved record for accuracy.  To get their numbers they use only likely voters and subtract those who strongly disapprove from those who strongly approve. A negative number means more disapprove than approve. This update is a few days old but I just checked and the numbers haven't changed.  It is updated daily averaging the last three days.

You may note that other than the first couple of months when moderates/independents caught in the glow of the new president and perhaps his skin color were reverting to more heartfelt positions, that the biggest jump (down) seems to have come in June/July, 2009. Why? I think I know. That’s the period of time congress came out with its health care legislation.












 

There has been a slight uptick since the health care bill has been passed. The president was right in believing that when the bill passed their would not only be more people who liked the benefits (and wouldn't think about the problems) and that it is very hard to take away something like health care insurance once it has been given. No doubt, it is a sticky problem and one that no political party will not face without trepidation.

After all, if I were running as a Democrat, I'd start putting kids pictures up on ads and saying their life was saved because of the health care reform.  It is pretty hard to argue against that with - but we can't afford this.

It is also true that people like winners. People includes voters. President Obama won this battle.  Republicans might win the war (if the war is the next election) but that remains to be seen. They've lost some of their momentum and their soap box.

My solution.  Of course, whenever you criticize any legislation, it is a fair question to ask what is your solution. I don't have a complete one. But, I do have two ideas. The first one I wrote about last year and it involves raising hundreds of billions of dollars to defray health care costs by making charitable donations for that purpose a tax credit rather than a deduction. This would be so popular that it would have to actually be limited either by a fixed dollar amount or by requiring that for every dollar that goes to it, a dollar has to be given to a "regular" charity. Otherwise, all other charities would be drained of their sources. My other idea is broader. It's this - go very slow. Massachusetts' plan may be failing. But, it was a try. And, each state is trying to figure this out and the federal government should be encouraging it.

A few months ago I watched a round table of governors on C-Span at their yearly meeting discuss health care. Know what I learned? They understand it much, much better than U.S. senators and congressmembers I was watching debate it at the same time. Know why? Because they are held accountable for the results, unlike congress.  It was fascinating to watch them discuss ideas, and instead of pelting each other politically, saying things like - that's a great idea - I want my state to try that. Health care should be as much as possible left to the states to figure out what is the best way to do this. We have 50+ laboratories to try and we shouldn't just use one big lab, where there isn't accountability. Of course, we should be doing this with things like education too. Good luck to me on getting my wish on this one.

I had a few other political topics I wanted to discuss, such as U.S.-Israel relations, the coming bankruptcy of several populous states, the great increase in state taxation we can all expect, and my usual drum beat on partisanship. But, you've probably had enough for today. Okay, that last one I can't resist commenting on. I was listening to Rush Limbaugh one day while driving in my car. As usual, I agreed with about half the things he had to say and cringed at the partisanship. But, he said one thing that so stunned me for its lack of introspection that it stunned me. I really loved this. You see, he explained, when conservatives criticize liberals, they do it out of love. But, when liberals criticize conservatives - they do it out of hate.

Trust me on this one, Rush, there is not a whole lot of loving going on, on either side. But, when you and Keith Olbermann have a beer together and share some laughs, let me know about it. Maybe you'll change my mind.

About Me

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .