Hillary's mysterious money

Enjoy an advance peek at a joke from Argus Hamilton's Sunday column:

Hillary Clinton's fundraising report Thursday showed a suspiciously huge haul from lower Texas. Half her donations came from the impoverished Rio Grande Valley. No one wants to say it looks like money laundering but photos from the space shuttle show women on the banks of the Rio Grande beating hundred dollar bills on the rocks.

Here's the link to the Village Voice article where you can read all about it.

Read Argus every day at www.ArgusHamilton.com.


Copyright 2005 Argus Hamilton
All rights reserved
Used by permission

.

The one-minute fix for the space shuttle

NASA officials announced today that all future space shuttle flights are grounded until they can figure out why chunks of foam insulation keep flying off the external fuel tank during launch.

NASA could save millions of your tax dollars by doing a quick Google search for "space shuttle" and "Freon."

Let me save you the trouble: Click this link or this one.

In 1997, the Environmental Protection Agency forced NASA to stop using Freon to make the foam that insulates the external fuel tank. A more environmentally-friendly substitute foam repeatedly chipped off during launch, but NASA chose to ignore the problem rather than confront the EPA on the politically touchy question of ozone depletion.

No one at NASA had the integrity to stand up and tell the country that if the space program wasn't granted an exemption from the ban on Freon, astronauts were likely to die.

And now they have.

And now the entire space shuttle fleet is grounded.

The space program can set an inspiring example of courage and daring by standing up to the environmental lobby and forcing an honest discussion of the consequences of environmental regulations.

If scientists in America can't tell the truth, the space shuttle isn't the only thing that's finished.



Copyright 2005

.

The revenge of Alberto Gonzales

Just when the confirmation battle over John Roberts' nomination to the Supreme Court seemed to be smoothing out into an unobstructed path, jilted nominee-wannabe Alberto Gonzales throws a spike strip into the road.

The Attorney General gave an interview to the Associated Press on Tuesday and said Roberts' 2003 statement that Roe v. Wade is settled law is no longer binding on him once he gets to the Supreme Court.

"If you're asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you're bound by the precedent," Gonzales said, "If you're a Supreme Court justice, that's a different question because a Supreme Court justice is not obliged to follow precedent if you believe it's wrong."

And with that, the abortion question is placed squarely on the table again.

Does John Roberts accept the Supreme Court's decisions that have found a right to privacy in the Constitution? If so, does he accept the Supreme Court's 1973 decision that the right to privacy includes a woman's right to a legal abortion in early pregnancy? Does he believe that privacy is a fundamental right? If so, does he believe the government has a compelling interest in protecting unborn life that is sufficient to justify the limitation of that right?

With the Supreme Court closely divided, the vitally important policy decisions on this emotional issue will be made not by the elected representatives of the people of each state, or by their elected representatives in Congress, but by the personal value judgments of the next person to be confirmed as a justice of the Supreme Court.

Is this any way to run a railroad?

Read "Why There is No Constitutional Right to Privacy, and How to Get One" for another view.


Copyright 2005

.

"Are you now or have you ever been a member of the Federalist Society?"

The president's first Supreme Court nominee refused to explain today why he was listed in a leadership directory of the Federalist Society. Earlier, when news reports said John Roberts had been a member of the conservative legal group, he said he had no recollection of ever having belonged to the Federalist Society and the news outlets were forced to publish corrections.

Today, the White House repeated the earlier story that Judge Roberts has no recollection of belonging to the group.

Here we have, in a single snapshot, the entire 360-degree landscape of the judicial confirmation problem: Nominees who would interpret the Constitution refuse to tell the American people their true views about constitutional interpretation. Usually they just refuse to answer a straightforward question. This is a little more comical.

How can an ambitious man who has spent his life burnishing his resume "not recall" if he was a member of one of the best conservative legal networking groups in the country?

Okay, so it's a lie. He doesn't want the American people to know that he joined the Federalist Society.

What does it mean to be a member of the Federalist Society?

It means Judge John Roberts believes the Constitution should be interpreted to mean what the people who ratified it intended it to mean, and not what a majority of judges decides is the best meaning to appropriately address the current problems of American society.

Of course, there will be exceptions.

The people who ratified the Fourteenth Amendment, for example, intended it to leave racial segregation in place. They were very specific about that. They were horrified at the idea that the Civil Rights Bill of 1866, which the 39th Congress was writing at the same time they were writing the Fourteenth Amendment, might be interpreted by the courts to abolish segregated schools in their own Northern states. They even removed some language from the bill that said "there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery."

That's right, the 39th Congress cut that language out of the bill. It was a deal-breaker.

So a judge who truly wants to interpret the Constitution according to original intent would be forced to vote to overturn Brown v. Board of Education, the unanimous 1954 Supreme Court ruling that looked the other way from historical precedent and forced the states to desegregate their schools.

Obviously, that's not going to happen. Brown v. Board of Education would be an exception to the rule of original-intent interpretation.

Perhaps Roe v. Wade would be an exception, too.

Perhaps the list of exceptions would include all the Supreme Court rulings that require the states to provide jury trials and Miranda warnings and defense attorneys and the rest of the protections in the Bill of Rights that the authors of the Constitution intended to apply only to the federal government.

Probably it would. The list of exceptions would be very long. If it's long enough to include Lawrence v. Texas, the recent ruling striking down a state ban on homosexual sodomy, then Justice Roberts would probably be awarded the honorary title, Another Souter.

Original-intent interpretation would be the most popular idea in America if the American people amended the Constitution so that it actually said what the majority of the country thinks it should say. Instead, we've allowed the Supreme Court to interpret civil rights and women's rights and privacy rights and defendants' rights and freedom of speech and everything else into the Constitution for us. And now we're in this precarious situation where original-intent constitutionalists can interpret them right out again.

Our rights should not be exceptions to the Constitution, they should be amendments to the Constitution. Pick up The 37th Amendment from Amazon.com and find out -- in the fast-moving form of a novel set in the year 2056 -- how far off the track we've jumped and how we can get our government back on the rails.


Copyright 2005


Complete source notes can be found in the appendix to The 37th Amendment, "How the First Amendment Came to Protect Topless Dancing."

.

Why "I will follow the law" is not an answer

Don't be surprised if the confirmation hearings for Supreme Court nominee John Roberts include an exchange that goes something like this:

Question: "Do you believe there is a fundamental right to privacy in the Constitution?"

Answer: "It would not be appropriate for me to comment on matters that may come before me as a justice of the U.S. Supreme Court, but I will follow the law."

This is not an answer, and here's the reason it's not an answer:

In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling." The law must be shown "necessary, and not merely rationally related, to the accomplishment of a permissible state policy."

That quotation is from Griswold v. Connecticut, the 1965 Supreme Court ruling that struck down a Connecticut law banning birth control. In Griswold, the Supreme Court declared, for the first time, a constitutional right of privacy that superceded state laws which intruded too far on that fundamental right.

But look closely at what the Court actually said.

The Court said that when a personal liberty is fundamental, a state may not pass a law restricting it unless the state can show a compelling reason that the law is necessary in order to accomplish a permissible state policy.

But who decides what's fundamental and what's compelling and what's necessary and what's permissible? The elected representatives of the people of the United States?

Guess again.

The Supreme Court will decide if the liberty in question is or is not fundamental.

The Supreme Court will decide if the state's reason for its restrictive law is compelling, or merely rational.

The Supreme Court will decide if the law is absolutely necessary to accomplish the state's policy.

The Supreme Court will decide if the state's policy is permissible.

That's the law. So when a Supreme Court nominee says "I will follow the law," it tells us nothing.

This all stems from the Incorporation Doctrine, the Supreme Court's eighty-year project of picking and choosing which 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. Before the Supreme Court began "incorporating" the Bill of Rights into the Fourteenth Amendment in 1925, it was settled law that the Bill of Rights "did not have any effect upon the powers of the respective states." [Maxwell v. Dow, 1900]

The Incorporation Doctrine is the mechanism by which the Supreme Court makes the Constitution "evolve." When five or more justices come to believe that a right is "fundamental," they strike down state laws that limit that right without a "compelling" reason. In this way, state laws on everything from panhandling to the death penalty become subject to the veto of unelected federal judges. This, in the words of Justice Hugo Black, "simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination--a power which was specifically denied to federal courts by the convention that framed the Constitution."

The problem with the Incorporation Doctrine's "fundamental" vs. "compelling" test is never clearer than in the Court's 1973 Roe v. Wade decision. Whether a woman's right to privacy is sufficiently fundamental or whether a state's interest in protecting an unborn life is adequately compelling is, to quote Justice Felix Frankfurter, "merely subjective." The decision must depend on the personal values of the justices who sit on the Court.

That's why the Senate confirmation process for federal judicial nominees has become a fight to the death between opposing sides of the abortion question. The Roe v. Wade decision turned the Senate confirmation process into the last opportunity for the people of the United States, through their elected representatives, to have any say at all in the making of law and public policy on this issue.

Just for comparison, let's look at how the Founders' design, as James Madison explained it, would handle the abortion question. The power to regulate--or not regulate--abortion is not one of the "few and defined" powers delegated by the Constitution to the federal government, therefore it is one of the "numerous and indefinite" powers which remain in the state governments. Under the Constitution, the people of one state have no power to tell the people of any other state what their law on the subject ought to be.

The Founders might have suggested that the people of the United States amend the Constitution to establish--beyond the reach of any court or legislature--that a woman has a right to privacy, or that a fetus has a right to life, or that a woman has a right to privacy in the first trimester of her pregnancy and a fetus has a right to life in the third. Whether any of this is a good or bad idea is a separate argument--the point is that the Founders excluded the judiciary from policy-making, and we should seriously consider the possibility that they knew what they were doing.

Then we should get out the Constitution, read the directions and write some amendments that spell out our privacy rights in plain English.

Here's a place to start if you're interested: "Why There is No Constitutional Right to Privacy, and How to Get One."

Copyright 2005

Source notes:

The quotation from Justice Goldberg's opinion in Griswold v. Connecticut can be found at 381 U.S. 479, at 497 (1965). Within that quotation, Justice Goldberg cited Bates v. Little Rock, 361 U.S. 516, at 524 (1960), McLaughlin v. Florida, 379 U.S. 184, at 196 (1964) and Schneider v. Irvington, 308 U.S. 147, at 161 (1939).

For complete source notes, please see the appendix to The 37th Amendment, online at www.ExtremeInk.com/appendix.htm.

.

Why the European Union will collapse

Reuters carried a story today about the European Union's new crackdown on member states that fail to adopt EU rules on noise pollution.

The European Commission started legal action against eleven countries -- Austria, Belgium, the Czech Republic, Finland, France, Greece, Ireland, Italy, Luxembourg, Portugal and Britain -- that have missed the July 2004 deadline to enact national laws to reduce the noise of traffic, machinery and airplanes in their cities.

"The EU's objective is to substantially reduce the number of people in Europe affected by noise by 2012," Environment Commissioner Stavros Dimas said.

It's difficult to imagine a more local issue than noise in a city. If it doesn't bother the people of Austria, Belgium, the Czech Republic, Finland, France, Greece, Ireland, Italy, Luxembourg, Portugal and Britain, why should it bother the European Commission?

The European Union can only stay in business if it gives up all hope of enforcing its rules. Any time it tries to order a sovereign nation to raise its taxes, cut its spending, limit its automobile and air traffic or carry out any other directive from Brussels bureaucrats, it will have its head handed to it by the national governments that have to face their own voters before too long.

The EU is fighting the principle of government by consent of the governed. It will not win. If the EU bureaucrats want to continue to enjoy the lavish perks of Emerald City, they'd be well advised to remember that the Wizard of Oz didn't really have any power.



Copyright 2005


.

The quotable Argus Hamilton

America Wants to Know salutes comedian Argus Hamilton, quoted this week in Time magazine, in Sunday's L.A. Times and again in Monday's L.A. Times.

Read Argus every day at www.ArgusHamilton.com.

.

Nailing Justice O'Connor to the bench

If we would just read the Constitution and follow the instructions, Sandra Day O'Connor could retire in peace.

Instead, we have the spectacle of Senate Judiciary Committee Chairman Arlen Specter suggesting on Sunday that President Bush could appoint Justice O'Connor to the post of Chief Justice should the job suddenly become open, which it is not at this time.

"I think it would be very tempting if the president said to Justice O'Connor, 'You could help the country now,' " Senator Specter told CBS's Face the Nation, "She has received so much adulation that a confirmation proceeding would be more like a coronation, and she might be willing to stay on for a year or so."

Oh, for goodness' sake, let the woman live.

We wouldn't be in this hyper-hysterical situation if we hadn't spent the last eighty years staring blankly while the U.S. Supreme Court usurped the powers of the states and the powers of the Congress and the power of the people of the United States to amend the Constitution.

If the Constitution had been amended to secure civil rights and women's rights and privacy rights, as it should have been, it wouldn't matter if the president appointed Jesse Helms to the Supreme Court.

Senator Specter's remark that Justice O'Connor's confirmation proceeding would be "more like a coronation" ought to send shivers down the spine of every American. James Madison and the rest of the framers went to a lot of trouble to make sure the president wasn't a king, they wouldn't have believed what the federal judiciary--"the least dangerous branch," Hamilton said--has become.

Read more about it in A Retirement Plan for Sandra Day O'Connor and How the First Amendment Came to Protect Topless Dancing.


Copyright 2005

Marty Ingels jumps on Tom Leykis

If you had been a witness to the 39th Congress' debate on the Civil Rights Bill of 1866, you almost certainly would have said to yourself, "One day this will end very badly. One day this will open the door for Marty Ingels to sue Tom Leykis for age discrimination."

The Congress that wrote the Fourteenth Amendment took some anti-discrimination language out of the Civil Rights Bill of 1866 just before the final vote. The lawmakers were worried that the words might lead the courts to a "latitudinarian construction" that was "not intended," specifically, that the courts might say Congress had meant to ban racial discrimination.

This they most certainly did not intend to do.

That's why the Supreme Court handed down rulings like Plessy v. Ferguson, saying the Constitution didn't require anything more than separate but equal.

The Brown v. Board of Education decision in 1954 made up a new standard that said, in effect, discrimination that makes people feel badly about themselves is not only undesirable, it's unconstitutional.

And now comedian Marty Ingels is suing radio talk show host Tom Leykis for age discrimination because Leykis told him on the air that he was too old to be on the show, called him "Pops," and suggested that he call a Big-Band station with a different "targeted demographic."

So far the courts aren't buying it, but you never know.

The Constitution has never been amended to ban racial discrimination or gender discrimination and that's why people can fly into court with any wild claim of discrimination and take their shot at legal greatness. Every constitutional "right" to be free from discrimination -- whether by race, gender, age, disability, looks, weight, health, national origin, immigration status, or "targeted demographic" -- is grounded not in the text of the Constitution but in an interpretation of "due process of law" and "equal protection" that was pulled out of the air.

So on any given day, a federal judge somewhere in America might look favorably on a discrimination claim and wreak havoc with private businesses that are just going about their business, exercising their own rights to make decisions that benefit their own interests.

Just the fear that a judge might rule in favor of a claim, no matter how groundless, is enough to cost businesses vast amounts of money in legal fees for forms and disclaimers and employee handbooks and sensitivity training.

Think how much simpler it would be if we amended the Constitution to say, in plain language, that there shall be no discrimination on the basis of race or gender. Then no one would have to fear that the new Supreme Court justice will lead the Court to roll back civil rights or turn back the clock on women's rights.

Imagine how much quieter this summer would be if the Constitution actually said, in plain language, that a woman has a right to privacy in the first trimester of her pregnancy and a fetus has a right to life in the third.

We're paying the price for decades of allowing the Supreme Court to amend the Constitution for us. It may have seemed like a good idea at the time but it's not what the Framers had in mind, however much Ben Franklin might have wanted to call Leykis 101.


Copyright 2005

For complete source notes on the debate over the Fourteenth Amendment and the Civil Rights Bill of 1866, and the later Supreme Court rulings, please see the appendix to The 37th Amendment, online at http://www.ExtremeInk.com/appendix.htm.
.

Seizing your house to put up a mall: Why the Supreme Court thinks it's fine

In 1833, a man named John Barron complained to the U.S. Supreme Court that the city of Baltimore had ruined his profitable wharf, filling it with earth and gravel by re-routing streams in order to pave the city streets. The city had taken his property for public use, Mr. Barron said, and under the Fifth Amendment to the U.S. Constitution they could not do that without paying him fair compensation.

The U.S. Supreme Court rejected Mr. Barron's claim. The Fifth Amendment "is intended solely as a limitation on the exercise of power by the government of the United States," Chief Justice John Marshall said, "and is not applicable to the legislation of the states."

In other words, the U.S. Constitution offered no protection at all to people whose property was seized by a state for public use. If the state constitution allowed the property to be taken, that was the final word on the subject. The protections in the Bill of Rights did not apply to state governments.

So when the U.S. Supreme Court ruled recently in Kelo v. City of New London that nothing in the U.S. Constitution prevented the Connecticut town from seizing private homes and giving the land to a private developer, it was actually returning to the original intent of the Constitution.

Of course, the reasoning was a little different. The Court certainly didn't rely on Chief Justice Marshall's understanding that if Congress had intended the Bill of Rights to apply to the states, "they would have declared this purpose in plain and intelligible language."

The truth about the Constitution is that it reserves all power to the states except the powers that are explicitly listed in the Constitution as belonging to the federal government, plus the powers that are "necessary and proper" to carry out those specific powers.

Today, the federal government gets around those strict limits by using the tax code as a tool of reward and punishment, by handing money back to state governments with strings attached, and by stretching the definition of "commerce" so that the constitutional power to regulate interstate commerce covers just about anything that Congress wants to fiddle with.

State powers have also been cut down by the U.S. Supreme Court, which began in 1925 to erode the Tenth Amendment's guarantee that all powers not delegated to the federal government are reserved to the states or to the people. Ignoring decades of precedents holding that the Bill of Rights restricted only the powers of the federal government, the Court decided that certain rights were so fundamental to the concept 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.

The Court decided that when a right was "fundamental," a state would not be permitted to infringe it unless the state could show a compelling reason--not merely a rational reason--that the law was necessary to accomplish a permissible state purpose, and that the law was no more restrictive than absolutely necessary to accomplish that purpose.

This tough standard was used to strike down state laws restricting everything from panhandling to flag-burning to topless dancing to abortion. It was used to control police procedures and restrict searches and throw out evidence and require Miranda warnings.

Since this is all made up out of the air anyway, the Court could have adopted this tough standard in the Kelo case.

The Court could have ruled that there is a fundamental right to private property, and that a state may not seize one person's property in order to give it to another person unless the state can show a compelling reason--not merely a rational reason--that the seizure is necessary for a permissible purpose, and that it is the minimum necessary to accomplish that purpose. The Court could have required cities and states to justify eminent domain seizures the same way it forces them to justify laws banning nude dancing.

But it didn't.

Property rights are certainly "fundamental"; they're right there in the Constitution after life and liberty. Why did the Court refuse to give property rights the same protection it gives other rights?

Because the defense of property rights is a sticky wicket for judges who think it's appropriate for the federal government to protect the habitat of migratory birds and the breeding grounds of kangaroo rats. Beefing up the protection of property rights would make it harder for the government to put property owners through years of expensive studies and legal proceedings before they can clear trees and build on their own land.

There is a fear in some quarters that to strengthen property rights is to unleash hideous legions of earth-destroying monsters who will kill Bambi's mother and her little friends the snail darters.

And that's why the justices who usually have no fondness for states' rights said the states have a right to seize your house for a shopping mall.

It's been so long since the Supreme Court said the states were in charge of anything, no one seems to know what to do about this.

Here's what you do. Take out the phone book and look in the government pages--they're usually at the front--for the names of your representatives in the state assembly and state senate. Give them a call. Send a little note to the governor. Let them know that you think your state constitution ought to be amended to say that property shall not be seized for private development. Tell them you will not support any candidate who doesn't support that amendment. Tell them you know who's running this show and it's not the Supreme Court.


Copyright 2005

Bill Clinton's nasty trick

Bill Clinton is so much fun to watch.

Just when you think he's working day and night to help Hillary get elected president, the inner Bill surges forth to say, "SHE can't be president! She's no ME!"

Yup, it's sabotage.

How else can you explain the former president's speech Friday to the League of United Latin American Citizens, the nation's largest Hispanic rights organization, in which he proposed amnesty for illegal aliens as a way of restoring solvency to the Social Security system?

"If we legalize just 250,000 more immigrants a year," our man Bill explained, "it would solve half of the shortfall in the Social Security Trust Fund."

Just wait until some luckless reporter tries to ask the lovely and talented Senator Clinton if she favors her husband's plan to save Social Security by granting amnesty to illegal aliens. Let's hope it's someone who's quick enough to duck flying lamps.


Copyright 2005


.

Sharpen your pencils: Sandra Day O'Connor retires

"Really, a Supreme Court justice should be able to retire without the whole country coming unglued about it."

---From How the First Amendment Came to Protect Topless Dancing, appendix to The 37th Amendment: A Novel, 2002

Sandra Day O'Connor's retirement set off a war today and raised fears that privacy rights, civil rights and women's rights are about to return to the middle ages by a vote of 5-4.

Don't panic. Justice O'Connor's departure is an opportunity to do it right this time.

Constitutional rights do not exist only when they're created by Supreme Court justices. They can also be in the text of the Constitution, where they belong, where they're out of the reach of judges and legislatures.

What a concept.

To find out how constitutional amendments can protect privacy rights, read Why There is No Constitutional Right to Privacy, and How to Get One.

Then read A Retirement Plan for Sandra Day O'Connor to find out what we need to do to protect civil rights and women's rights.



Copyright 2005


.