Exit stage left: Miss America goes south

The Miss America Organization announced Thursday it will leave Atlantic City after 85 years on the boardwalk. It was a financial decision, pageant officials said, now that low ratings have forced the contest off the ABC television network and onto a country music cable channel.

The legendary beauty pageant is retooling its format in a frantic attempt to hang on to its remaining viewers. They're thinking of adding some reality show elements.

Here's some free advice for the Miss America pageant and its panicked producers.

Be who you are.

You're a beauty pageant. You're a nationwide competition to find a tall, lithe, leggy, stacked, smiling American goddess.

Don't be ashamed. Women have a right to be proud of being beautiful.

Drop all the chit-chat about education and charity work and stop raising awareness about vile and frightening things that no one wants to hear about, especially from you.

Don't be intimidated by activists or feminists or anyone who insists that women ought not to be paraded as sex objects. Remember that it's insulting to women everywhere to be very interested in their minds as long as they're under twenty-six and over five-foot-ten and built like an unprintable brick structure.

Be the showcase of unreachable beauty and be proud of it.

That should sell some lipstick.


Copyright 2005

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Ayn Rand's advice and the Gaza Strip pullout

"Check your premises," Ayn Rand often said, because when you are acting on the wrong premise you will always achieve the opposite of what you intend.

Here's one premise: The Palestinians and the Arab nations who support them want an independent Palestinian state living side-by-side with Israel in peace.

Here's a different one: The Palestinians and the Arab nations who support them seek the total destruction of Israel and the expulsion of Jews from a region they consider to be Arab land.

This week, Israeli Prime Minister Ariel Sharon forcibly evacuated Jewish settlers from the Gaza Strip and bulldozed their homes so that Palestinians could have the land. He said it was impossible to watch it without tears in his eyes but insisted that the pullout from Gaza would make Israel safer.

If he achieves the opposite, you'll know why.


Copyright 2005


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How the next president can get us out of Iraq

Imagine a phone call on the afternoon of January 20, 2009, from the U.S. president to the leaders of the Iraqi government.

"You have six months to privatize all state-owned enterprises, starting with oil, or we're pulling our troops out and the next time you see us, if you're alive that long, you won't be much longer."

How will this pulpy dialogue solve the problem of Iraq?

Take a close look at the debate over the Iraqi constitution. "The main obstacle was the argument over federalism, which the formerly dominant Sunni Arabs fear could lead to Kurdish and Shiite Muslim regions splitting away from Iraq," the Associated Press reported late Sunday, "there also was no agreement on 17 other issues, including the distribution of oil wealth."

Oil wealth. The people who control the Iraqi government control the oil wealth.

It's not like that in the United States. In the United States, the people who control the oil wealth control the government.

Why is this better?

Look at Mexico. Mexico's Pemex oil company is government-owned. Mexico's oil wealth is controlled by the government. Even with prices far above fifty dollars a barrel, the country remains an impoverished basket case with a corrupt government. Instead of prospering in a booming economy at home, the industrious and motivated people of Mexico are mowing your lawn and remodeling your house.

Suppose the oil wealth in the United States was owned by the government. If the government controlled that much money, the dead-close 2000 election would have led to riots and bloodshed. Instead, the only people who were ready to take to the streets in protest were the ones who would have had jobs in the Gore administration.

Okay, that's an exaggeration. A lot of people were angry about the 2000 election. But if you look closely, you'll see that the angriest ones were deprived by the Republican victory of some kind of government money, whether improved wages for unionized government workers (including teachers) or lucrative consulting contracts for national health care proposals.

The more money the government controls, the more violence there will be in the fight over power and the greater is the opportunity for corruption.

Why is the U.S. system better? What about the argument that the government just serves corporate interests at the expense of the greater good of the American public?

The answer can be found far back in the works of William Blackstone, the 18th-century English legal scholar who was a powerful influence on the framers of the U.S. Constitution.

Blackstone said the fundamental rights of Englishmen were the right to life, the right to move freely from place to place, and the right to own and enjoy property. That's what the Constitution guarantees. Its purpose is to protect your life, liberty and property from being taken from you by arbitrary government power. That's the true foundation of a free country. Freedom means you have the right to enjoy your life and the fruits of your own efforts. The Constitution makes it extraordinarily difficult for the government to enact national health care and other social spending programs because somebody has to pay for those things and the framers were fundamentally committed to protecting your property from being taken for somebody else's benefit.

Maybe this is better illustrated by an old joke. A communist is speaking to a crowd of people about justice and fairness and the glory of the coming revolution.

"If a man has two houses," the communist shouts at the crowd, "should he not give one of those houses to a man who is homeless and forced to sleep in the cold street?"

"Yes!!! Yes!!" the crowd shouts back at him, cheering wildly.

"And if a man has two automobiles," the communist goes on, "should he not give one of them to a man who must walk until his shoes are worn out and his feet bleed?"

"YES!! YES!!" the crowd roars.

"And if a man has two shirts," the communist thunders, "should he not give one to a man who is clad in rags?"

The crowd is silent.

The communist taps on the microphone to see if it's working.

"If a man has two shirts," he thunders again, "should he not give one to a man who is naked?"

Silence.

Flustered, the communist holds out his arms and says, "What? What's wrong?"

In the first row, an elderly man raises his hand.

"Yes," says the communist impatiently, "what is it?"

"I've got two shirts," the man answers.



Copyright 2005


Read more about it, with source notes, in "A Plan to Get Out of Iraq: Blackstone's Fundamental Rights and the Power of Property".

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Pushing back: The Supreme Court's real job

This week Senator Arlen Specter complained to Supreme Court nominee John Roberts that the Court has limited Congress' authority to legislate. The next day, Justice Stephen Breyer complained to the American Bar Association that politicians are attacking the Court and threatening judicial independence.

This is happening because the U.S. government has been ignoring its constitutional limits for so many decades that no one working in government today is old enough to remember what their jobs are supposed to be.

Today we have a federal government that wanders unrestrained over the national landscape, exercising power over anything that has people exercised. The American people look to the federal government to solve all the problems of education and transportation and health and safety and just about everything else that comes up in the typically aggravating average day.

But that's not what the Constitution says.

The U.S. Constitution created a federal government of sharply limited powers and left all other powers to the states.

We can change it, of course, but we haven't changed it. That's still what it says.

Because the Constitution gives Congress the power to regulate interstate commerce, Congress does whatever it wants to do and claims that its actions are related to interstate commerce.

In two cases, the Supreme Court said Congress had gone too far. U.S. v. Morrison in 2000 threw out the Violence Against Women Act and U.S. v. Lopez in 1995 struck down a federal law that banned handguns within a thousand feet of a school. The Supreme Court said these laws, however worthwhile and well-intended, had no relationship whatsoever to interstate commerce. Assaults on women and guns near schools are subjects for state law, not federal law.

These are the two decisions that have Sen. Specter so angry. But he's wrong. The framers of the Constitution left the police power to the states. They didn't want the federal government to be too powerful, and they divided power between the federal government and the states in the way they thought would best safeguard freedom.

Justice Breyer is wrong, too, when he complains about the Court being attacked by politicians over its decisions on controversial issues like the death penalty.

The reason the Supreme Court is being attacked by politicians is that it has crossed beyond its constitutional limits and is now making policy. The framers of the Constitution considered a proposal to allow federal judges to participate in the process of deciding what the law ought to be, but they voted it down twice and specifically excluded the courts from
policymaking.

In 1925, the Supreme Court began to usurp the states' policymaking powers by declaring that some parts of the Bill of Rights are so fundamental to the idea of due process of law that they must apply to the states through the Fourteenth Amendment, which bars any state from denying due process of law to any person.

Prior to 1925, for example, states held the well-established power to limit freedom of speech. To the extent permitted by their state constitutions, they could prohibit libel and slander and obscenity and incitement and panhandling and anything else the state legislatures thought undesirable.

But gradually, the Supreme Court imposed the restrictions of the First Amendment on the states. Of course, the Court couldn't say the First Amendment was absolute. So the justices devised a test to judge whether a state law went too far in restricting a fundamental liberty. The Court said the state had to show a "compelling" reason that the law was "necessary" to acheive a "permissible" state purpose. A rational reason was not enough. What was a compelling reason and what was merely rational? The justices would draw the line on a case-by-case basis.

Over the rest of the twentieth century, the Supreme Court used this reasoning to strike down state laws, limit the authority of school officials, and compel local police and state courts to change their procedures for searches, arrests, and trials.

In so doing, the Supreme Court gave itself a role in policymaking that the framers specifically denied to it.

The justices may think they're simply interpreting the Constitution, but in fact they are exercising subjective policy judgment. Take abortion, for example. Is a woman's right to privacy sufficiently "fundamental" or is a state's interest in protecting unborn life "compelling" enough to restrict it?

It's not a question of whether a law is good or bad, or a policy is right or wrong, it's a question of who decides. The Constitution is a legal contract dividing power between the federal government and the states. It is the Supreme Court's job to enforce the constitutional boundaries. If the justices substitute their own judgment of wisdom and necessity for the judgment of voters and their elected representatives, they're not acting as judges, they're in politics. And they can expect to hear from people who don't agree with the policies they impose.

This is not a conservative or liberal issue. It's a problem for both the left and the right.

On the left, for example, there's medical marijuana. Under the Constitution, the legality of a drug that is produced and consumed within state borders is entirely within the power of the states, which is why Prohibition required a constitutional amendment. The Supreme Court recently endorsed Congress' claim that the power to regulate interstate commerce includes the power to ban state-approved medical marijuana, even if the drug is never sold across state lines. There is no basis for that view in the text of the Constitution. It is a policy decision made by justices who think the spread of marijuana use is a bad thing.

On the right, there's the death penalty. The Supreme Court recently ruled that states may not execute convicted killers who were juveniles at the time of their crime. There is nothing in the text of the Constitution that gives the Supreme Court the power to override the judgment of state governments on this issue. It is a policy decision made by justices who think capital punishment is wrong. (The tip-off that there's nothing in the Constitution to support this decision is the resort to foreign law as a means of justifying it.)

This is all a consequence of our eighty-year failure to update the Constitution with amendments. We have relied on "landmark" cases instead. This has given the Supreme Court too much power, political power, and today we are all paying the price for it.


Copyright 2005

Source notes can be found in the appendix to The 37th Amendment.

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L.A. Times discovers illegal immigration

Something has changed at the Los Angeles Times. The paper that once insisted on calling illegal immigrants "undocumented workers" editorialized today that California's schools are being crushed by the federal government's failure to pay the cost of educating the children of illegal immigrants.

They seemed at a loss to know how to persuade the federal government to do that.

Allow me.

Here's a fast and easy way to force Washington to come up with the money: Propose an amendment to the U.S. Constitution that says the states cannot be forced to pay for services to illegal immigrants. It won't pass Congress, but it doesn't have to pass Congress. Article V says it takes two-thirds of the state legislatures to call a constitutional convention and three-quarters of them to ratify an amendment. The Constitution can be changed even if the entire House and Senate, the president, all fifty state governors and the U.S. Supreme Court unanimously oppose it. One terrifying national poll on the issue and there will be so much federal money jamming California classrooms there won't be room for the students.

Read more about it here.


Copyright 2005

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Revealed: Judge Roberts' precise view on abortion rights

ABC's This Week aired an interview today that John Roberts gave to an ABC affiliate in Texas five years ago. In it, the new Supreme Court nominee talked about Roe v. Wade and referred to abortion as a basic right.

Political correspondent Linda Douglass, commenting on the taped interview, sounded very reassured. "He kept referring to abortion as a basic right, a basic right," she said.

Not so fast there.

For constitutional lawyers, a "basic right" is something less than a "fundamental right." Read this excerpt from the Associated Press story of July 23 about the Roberts papers from his work in the Reagan administration:

In his Reagan years, Roberts weighed in on matters such as busing, immigration rights, fair housing law and war powers.

In an August 1984 memo, he wrote with lawyerly precision and caution about proposed presidential remarks on fair housing.

"The first sentence refers to the right of fair housing as a 'fundamental' right. I would change this to 'basic' right, since 'fundamental right' is a legal term of art in constitutional analysis and the right to fair housing is not such a 'fundamental right,'" Roberts wrote.

A fundamental right, the Supreme Court has said, is a right that is so fundamental to the concept of due process of law that it must apply to the states through the Fourteenth Amendment, which bars any state from denying due process of law to any person.

Not all rights are fundamental. "Some are in and some are out," Justice Felix Frankfurter complained in his 1947 concurring opinion in Adamson v. California, "but we are left in the dark as to which are in and which are out."

In the Adamson case, the Supreme Court ruled five to four that the Fifth Amendment right against self-incrimination -- the well-known "right to remain silent" -- did not apply in state courts. It was "out," to paraphrase Justice Frankfurter.

But in 1964, a different Supreme Court decided that it was "in." The Malloy v. Hogan case overturned Adamson, which in 1947 had declared it "settled law" that the Fifth Amendment protection offered no protection from state authorities.

As you know if you've read The 37th Amendment, it's a plain historical fact that the Bill of Rights was not intended to restrict the powers of the states. Even as late as 1922, the Supreme Court said the Constitution "imposes upon the States no obligation to confer...the right of free speech."

The reason the states are now required to respect freedom of speech and the rest of the list is this: the Supreme Court has gradually declared almost all the rights in the Bill of Rights -- and some that aren't in the Bill of Rights, like privacy -- to be "fundamental." The Court has said the states may not abridge fundamental rights unless they can show a "compelling" reason that the law is "necessary" to achieve a "permissible" state purpose.

In short, when a right is declared by the Supreme Court to be "fundamental," the states have to respect it. When a right is only "basic," the states can do whatever the voters of that state want them to do.

John Roberts told the ABC affiliate in Texas that abortion is a "basic right."

Depending on your views, you may be reassured or alarmed by that, but you are informed.


Copyright 2005

Complete source notes can be found in the appendix to The 37th Amendment.

Carnival rides in space

It has been obvious for some time that the U.S. manned space program has degenerated into a hollow public relations campaign with no purpose other than its own useless survival. But last Thursday, "Commander" Eileen Collins made the case eloquently.

Orbiting 220 miles above the Earth, Collins complained that she could see environmental damage with the naked eye.

"Sometimes you can see how there is erosion," she said.

And this: "We would like to see, from the astronauts' point of view, people take good care of the Earth and replace the resources that have been used."

And this: "The atmosphere almost looks like an eggshell on an egg, it's so very thin. We know that we don't have much air, we need to protect what we have."

We don't have much air? This is science?

No, this is the kind of idiocy that killed the Columbia astronauts. NASA refused to buck the environmental lobby after the EPA ordered it to stop using Freon in the foam application process, even though it was plain from the first mission that the new Freon-free foam was shearing off during lift-off and threatening to cause catastrophic damage to the fragile thermal tiles.

So, astronauts would like to see people take good care of the Earth. That's nice. Maybe we should all die so the rocks can live in peace.

Environmentalism, taken to its logical conclusion, is a death cult. It never has been taken to its logical conclusion -- the human desire to survive makes hypocrites out of the most fervent believers -- but if it ever were followed all the way out, it would force human beings to make the preservation of their own lives secondary to the need to keep the Earth in its untouched, natural state.

All the rest of the galaxy is in an untouched natural state. There's one planet in the known universe that can support human life, human intelligence, human happiness, and environmentalists are using their short time on it to whine about preserving dirt.

Well, they can go evaporate if they think that's their highest moral purpose. Some of us who pay the taxes for these pointless, indulgent carnival rides in space don't see it that way.


Copyright 2005

President Bush loses his grip

Let's assume there will be an official clarification from the White House press office by the time you read this, but on Monday President Bush said he believes "intelligent design" should be taught in the schools along with evolution. "I think that part of education is to expose people to different schools of thought," Bush was reported to have said, "You're asking me whether or not people ought to be exposed to different ideas, the answer is yes."

"Intelligent design," if you don't follow this kind of thing, is the new name for creationism. Creationism is the belief of faithful evangelical Christians that the earth was created exactly as the book of Genesis describes, in six days.

If President Bush meant what he said, Congress should cut short its recess, rush right back to Washington and repeal the No Child Left Behind Act. Closing the Department of Education isn't a bad idea, either. The federal government should be locked out of public education before somebody gets seriously hurt.

Let's not waste a lot of time here: faith is not fact, religion is not science, belief is not knowledge, the IRS is not a collection plate.

That said, the president might be devious enough to be up to something. Perhaps he's stroking the religious right to distract them from something that they won't like at all. It might be that Supreme Court nominee John Roberts will never vote to overturn Roe v. Wade. Or it might be that President Bush has decided not to veto legislation expanding federal funding for stem cell research.

Hey, a girl can dream.


Copyright 2005


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