Scones and tea for Cinco de Mayo

Hey, counter-protesters! Celebrate Cinco de Mayo this year with scones and tea. Show your support for the English liberties that made the United States the place immigrants come to succeed and not the economic mess they run away from.

This week, as you listen to politicians in Washington criticizing the profits of U.S. oil companies, remember that Mexico's oil company, Pemex, is a government-owned monopoly, and with oil above seventy dollars a barrel the country is still a basket case. Iraq's oil is also controlled by a government-owned monopoly. So far all it's produced for the Iraqi people is a bloody fight for control of the government.

It may seem that life would be fair and wonderful if only the U.S. government would take the "excess" profits from private companies and distribute the money to people in need.

But it just doesn't work that way.

That's because people need a reason to do unpleasant things, like work and invest and muck around in petroleum in some hideous climate. Free governments protect your right to the wealth you create with your own efforts. "Fair" governments grab the wealth, and... um, that's pretty much the end of it.

Here's the recipe for freedom and prosperity:

Private property, not government-owned property.
Individual rights, not group rights.
Limited government, not a giant ravenous monster seizing wealth and throwing crumbs.

And here's a recipe for scones:

2 cups all-purpose flour
1 tablespoon baking powder
1/2 teaspoon salt
1/4 cup sugar
1-1/3 cups heavy cream

Pre-heat your oven to 400 degrees. Mix the dry ingredients in a bowl and add the cream, mixing with a spoon until you have a sticky dough. Turn it out onto a lightly floured surface, knead once or twice and pat the dough into a circle about an inch thick. Cut into twelve wedges (a little flour on the knife helps). Sprinkle the wedges with a little granulated sugar, place the wedges on a greased cookie sheet (or on a baking sheet covered with non-stick aluminum foil) and bake 12 minutes, or until the scones just begin to brown.

Happy Cinco de Mayo!


Copyright 2006

.

Senator Specter's uncomfortable straddle

Senate Judiciary Committee Chairman Arlen Specter said today he's thinking of introducing legislation to cut off funding for the NSA's warrantless domestic eavesdropping program until the White House gives him satisfactory answers about it.

The senator said he has told President Bush that he is willing to introduce an amendment that cuts off the funds for the program and that his amendment already has several co-sponsors. Then he told reporters, "I'm not prepared to vote for it myself."

Huh?

Maybe this is how you get re-elected in Pennsylvania, but it's not terribly useful if you want to convince anyone that you mean what you say.

"Institutionally, the presidency is walking all over Congress at the moment," Senator Specter complained, with some understatement. "If we are to maintain our institutional prerogative, that [cutting off the funds] may be the only way we can do it."

Of course, it's a lot less effective if you don't vote for it.

The mystery is why Senator Specter doesn't use the power he has as Senate Judiciary Committee Chairman to subpoena the White House for the information he seeks.

This is not a trivial matter. The United States Congress has the constitutional power, and responsibility, to oversee the executive branch.

Without naming names, let's consider the hypothetical possibility that a president is acting illegally. Other than waiting for the next election, what can be done about it?

The courts can't jump in and stop him. They have to wait until someone presents them with a case to decide.

The federal law enforcement community can't jump in and stop him. They work for him.

The state legislatures can't jump in and stop him. They have no jurisdiction or control over the federal government's executive branch.

The press and public can't stop him. Individuals have the ability to expose wrongdoing, but the president has the power to send law enforcement after them to investigate crimes both real and imagined. That might be an illegal abuse of power, but then that's where we started this little exercise.

Can anyone stop him?

Congress can stop him.

The committee chairmen in the House and Senate can subpoena the executive branch for documents, for testimony, for anything they want to examine.

Congress is not optional equipment on the president's limousine. The members of the House and Senate are the elected representatives of the people of the United States. They control all federal spending, they have the power to impeach and remove the president, and they have the power to investigate without restriction in order to carry out those constitutional powers.

There is no such thing as executive privilege. It is a made-up concept that exists only when Congress chooses not to challenge it.

If a president breaks the law, exceeds his constitutional powers, violates constitutional rights, or withholds information in order to mislead Congress and the public, only the committee chairmen on Capitol Hill are in a position to do anything about it.

And if they don't want to go down in history as the cowardly lions who allowed the United States presidency to become a dictatorship, they'd better get to it.


Copyright 2006

Editor's note: Read more about it in Executive Privilege: A Constitutional Myth by Raoul Berger (1974, Harvard University Press). You might also be interested in these earlier posts: "Rep. Heather Wilson pries open the White House," "Senate Republicans fire the big gun," and "Mr. Rumsfeld's Mythical Privilege."


.

The disgraceful arrest of Wenyi Wang

You know, it's just not a real dictatorship until you put a dissident in jail.

On Thursday, Chinese national Wenyi Wang was arrested for heckling the president of China. She was held in jail overnight. In the morning, she was charged with "knowingly and willfully intimidating, coercing, threatening or harassing" a foreign official performing his duties.

For a thousand dollars and control of the board, guess where this happened.

Did you guess North Korea? Cuba? Russia? Venezuela? Egypt? Syria? Iran?

That's too bad. We have some lovely parting gifts for you.

It happened on the White House lawn in the United States of America.

Wenyi Wang was given press credentials by the White House press office to cover the welcoming ceremony for Chinese president Hu Jintao. At the first opportunity, she shouted at him to stop oppressing the Falun Gong, a religious group in China that opposes the communist government there. She unfurled a banner. She urged President Bush to tell Hu Jintao to stop the killing.

It took three minutes for the Secret Service to get to the woman and haul her away. Before they did, she shouted a warning to the Chinese president that his time was running out.

The United States government thinks that was a threat.

Is it a crime to tell a communist to his face that his time is running out? It's lucky Ronald Reagan is dead or this bunch would have him in handcuffs.

Wenyi Wang could face six months in jail and a $5,000 fine.

Let me be the first to volunteer to pay it for her. It would be a privilege.

The Bush administration could simply have said Wenyi Wang and the publication she represents will no longer receive press credentials at the White House. That would have been a perfectly appropriate response.

Instead, they are prosecuting her for being the only person at the White House with the nerve to call attention to the fact that the president of China leads a communist dictatorship that crushes dissent, censors the press, and oppresses its people.

It's a sad day when the president of the United States doesn't see anything wrong with that.


Copyright 2006

.

The constitutional right to destroy a city

On Friday, a three-judge panel of the 9th U.S. Circuit Court of Appeals threw out a Los Angeles city ordinance that banned sleeping on the sidewalks. The ordinance, the judges ruled by a vote of 2-1, violates the U.S. Constitution's 8th Amendment prohibition on cruel and unusual punishment.

The judges decided that it is cruel and unusual punishment to arrest people for sleeping on the sidewalks until the city of Los Angeles provides enough homeless shelters for the estimated 11,000 people who currently use downtown sidewalks as beds and bathrooms.

City Councilwoman Jan Perry, whose 9th District includes the area known as skid row, wrote a plaintive op-ed in today's Los Angeles Times pleading for understanding of L.A.'s plight. She demanded that other cities in Southern California step up and shoulder some of the burden for, in her words, "public drunks, drug users, homeless people and those suffering from mental illness."

What we have here is a perfect example of how the U.S. Supreme Court's "incorporation doctrine" has made it impossible for local governments to do anything except waste your money.

Unless you've read The 37th Amendment, it will probably come as a surprise to you that the Bill of Rights, including the 8th Amendment's prohibition on cruel and unusual punishment, was never intended to restrict the powers of state and local governments.

It was 1925 when the Supreme Court first suggested that some rights were so fundamental to the idea of due process of law that they ought to apply to the states through the Fourteenth Amendment, which bars any state from denying due process of law to any person.

Gradually, the Supreme Court "incorporated" just about all of the rights in the Bill of Rights, and a few that they made up, like privacy, into the Fourteenth Amendment. The Court threw out state laws that infringed on "fundamental rights" unless the state could prove to the justices that the laws were necessary, narrowly tailored, and imposed for a "compelling" reason.

The fact that this is a completely subjective judgment can be seen in the divided vote to overrule the lower court and throw out L.A.'s sidewalk-sleeping ordinance.

The question is not whether the city ordinance is a good idea or a bad idea, but whether the decision properly belongs to the elected local government or to the unelected federal judiciary.

Before the Supreme Court invented the incorporation doctrine (without asking or receiving the approval of the people of the United States or their elected representatives), cities had the power to limit the use of the public sidewalks. There was no federal constitutional right to use the sidewalk to loiter, panhandle, assemble, preach, sleep, defecate or perform mime.

After the incorporation doctrine, everybody might have a right to do anything they want to do, and cities run the risk that they'll be saddled with federal lawsuits asserting those rights whenever they pass an ordinance prohibiting anything.

The logical conclusion of this reasoning can be seen, and smelled, on the streets of downtown Los Angeles.

The city government would like to protect the right of people to move freely from place to place without being harassed, so that businesses and customers and residents and visitors will stay in downtown Los Angeles and not flee the city. The elected officials of Los Angeles would like to exercise their constitutional power (it's in the Tenth Amendment) to decide what uses of the sidewalk are permissible.

Instead, the use of the sidewalks will be decided by people who have spun out of control, people who cannot make a responsible decision for themselves or others. Even worse, they're appointed for life.


Copyright 2006

Editor's note: You might be interested to read the earlier post, "The cat, the bag, and Justice Scalia," as well as the appendix to The 37th Amendment, "How the First Amendment Came to Protect Topless Dancing," which includes complete source notes and a bibliography.

.

Don Sutton was right about everything

The Los Angeles Times has a jaw-dropping article on page one today about former Dodger great Steve Garvey.

Turns out the chiseled icon has been living in fabulously lavish luxury while stiffing his creditors, bouncing checks to the supermarket, and refusing to pay his employees, his electric bill, his attorneys, his charity-auction pledges, his hotel bills, his kids' doctor, his taxes and his child support payments.

Don't bother him with details, he's busy giving motivational speeches on the importance of integrity. Click right over to www.SteveGarvey.com if you're feeling unmotivated and sleazy. He can help.

Here's a baseball prediction for 2006: Steve Garvey will cry on television, find God and become a televangelist. Sin! Redemption! Tax-exempt status! Twenty-thousand-dollar wristwatches! Life is good! God is great!


Copyright 2006

.

Decoding the immigration debate

In 1986, the United States gave amnesty to about three million illegal immigrants. The law contained provisions to prevent illegal immigrants from being hired in the United States ever again.

Today's supporters of immigration reform really don't want to talk about that. Nor do they want to talk about how many illegal immigrants will be in the country twenty years from now if the United States gives whatever-you-do-don't-call-it-amnesty to the eleven million illegal immigrants that the 1986 law utterly failed to keep out of the country.

President Bush used his weekly radio address today to blame Senate Minority Leader Harry Reid for blocking immigration reform. That should go a long way toward undoing the damage Senator Reid did to his party's November prospects when he vowed to filibuster any bill that didn't include a "path to citizenship" for illegal immigrants.

The plan shelved by the Senate on Friday was a shining and splendid piece of evidence that compromise isn't all it's cracked up to be.

Ayn Rand once observed that compromise can only be moral if it is made between claims of equal validity. A compromise between a valid claim and someone's desire, she wrote, is like offering a burglar one teaspoon of the family silver.

The people of the United States have a valid claim to a secure border and federal immigration law that regulates the number of people who can enter the country.

The people of Mexico have a desire to come to the United States and work for higher wages than they can find at home.

The businesses of the United States have a desire to allow unlimited illegal immigration in order to prevent upward pressure on wages and benefits in a growing economy.

The politicians of the United States have a desire to raise vast amounts of campaign cash from the businesses of the United States.

People who want to make a desire sound like a valid claim have their work cut out for them. One way to do it is to attempt to induce guilt on the part of the people with the valid claim. The idea is to make them surrender, since there's no easy way to defeat them.

"Immigration is an emotional issue and a vitally important one," President Bush said Saturday. "At its core, immigration is the sign of a confident and successful nation."

This is a pretty vicious statement when you look at it closely. The president uses the word "emotional" which at the very least suggests that opponents of his immigration proposals are irrational. "Emotional" can also be code for "bigoted and racist," as when Chief Justice Earl Warren wrote this about the reaction to the Supreme Court's Brown v. Board of Education decision:

If Congress had passed remedial legislation a generation or more before having to enforce Brown's integration provisions, the blacks and other minorities would have achieved their rights by the middle of the twentieth century, and much of the emotional heat undoubtedly would have been avoided.

The president's statement also blurs the line between legal and illegal immigration, which is the same as supporting a totally open border but without the honesty to say so.

Then, by calling immigration "the sign of a confident and successful nation," the president suggests that opponents of his proposals are frightened isolationists whose policies would cause the United States to fail.

So the president would like you to know that if you oppose his immigration reform proposals you are a bigoted, racist, isolationist, insecure xenophobe.

Feel guilty yet? No? Wait, he'll tell you how you're living the high life on the backs of illegal immigrants who work like slaves. (Senator John McCain told a group of union construction workers last week that none of them would pick lettuce in Arizona even if it paid fifty dollars an hour. Several people in the audience offered to take the job on the spot.)

You understand, of course, that if you don't feel guilty enough to legalize illegal immigrants in exchange for recognition of your valid claim to border enforcement, the president's dream of "comprehensive" immigration reform will die the death of a dog on Capitol Hill.

Okay, then. As long as everybody understands.


Copyright 2006

Source note: The Earl Warren quotation is from his 1977 autobiography, The Memoirs of Chief Justice Earl Warren, published by Doubleday; pages 306-307.

.

Sex on the side of the highway

Do sexually oriented businesses have a First Amendment right to advertise on signs that are visible from a highway?

U.S. District Judge Gary Fenner of Kansas City just ruled they don't. He rejected a lawsuit from John Haltom, whose ten stores sell sexy lingerie, sex toys, and adult videos in six states. Mr. Haltom said Missouri's law, which bans billboards for sexually oriented businesses within a mile of a highway, infringed on his right of free speech.

State Senator Matt Bartle applauded the decision but said he expects more challenges to the law.

In other words, Judge Fenner's decision settled nothing. A panel of appeals court judges may decide the issue differently. The full appeals court may overrule their decision. And the U.S. Supreme Court may ultimately hear the case and decide it with a five to four vote that only means the next Supreme Court nominee will have to duck questions about it.

Welcome to the logical conclusion of the Supreme Court's 80-year project of applying the Bill of Rights to the states. Nobody really knows what rights we have or don't have against state laws that limit the freedoms guaranteed by the first ten amendments to the U.S. Constitution.

That's because the Bill of Rights was never intended to restrict the powers of state governments. Believe it or not, the framers of the Constitution meant for the states to have the power to restrict freedom of speech and the press.

It was 1925 when the U.S. Supreme Court first began to talk about rights that were so "fundamental" to the concept of due process of law that the states were required to respect them under the Fourteenth Amendment, which bars any state from denying due process of law to any person.

The Fourteenth Amendment was ratified in 1868. If it was intended to apply the Bill of Rights to the states, it's odd that nobody knew this until everybody who voted on the amendment had died.

Just the same, the Bill of Rights applies to the states today because the Supreme Court says fundamental rights cannot be infringed by the states without a compelling reason.

And that is why nobody knows what rights we have or don't have against state laws that limit freedom of speech.

Is commercial speech a "fundamental" right? Let's say it is (though the Supreme Court may decide it isn't). Is Missouri's reason for banning sexy billboards "compelling" or is it simply a rational judgment made by state lawmakers? "Rational" isn't good enough when you want to infringe a "fundamental" right. The reason has to be "compelling."

Compelling to whom?

To whichever judges are hearing the case.

You see the problem.

Under the original understanding of the Constitution, the states were not bound by the First Amendment. So they were free to set their own policies (without bothering everybody in the other states) on Ten Commandments displays, prayer in schools, panhandling, loitering, nude dancing, and street protests. State legislatures were free to pass laws outlawing homeless street encampments, door-to-door proselytizing, and leaflets under windshield wipers. State school officials were free to suspend students who shouted "Heil, Hitler!" in the corridors or wore tee-shirts with messages that teachers found to be disruptive in the classroom.

No more.

The states are now subject to perpetual second-guessing by federal judges. No matter what anybody decides at any time, the only true answer is the one given by the Magic 8-Ball:

"Ask again later."


Copyright 2006

Editor's note: Read more about it in the earlier post, "The cat, the bag and Justice Scalia." For the complete story, including source notes and a bibliography, see the appendix to The 37th Amendment, "How the First Amendment Came to Protect Topless Dancing."

.