Proposed Amendment #5: Flag Desecration Amendment

The Supreme Court issued one of its landmark decisions in 1989, Texas v. Johnson, in which the burning of the American flag was protected as free speech under the First Amendment of the U.S. Constitution. The Congress responded by passing the Flag Protection Act, and the Supreme Court followed up by declaring the new congressional act unconstitutional and reaffirming the right to burn the flag in U.S. v. Eichman in 1990.

Since these decisions, the issue of flag burning has been an open soar festering on the American psyche. We are conflicted in that we want to respect the rights of minorities and individuals, especially rights as fundamental as free speech and the ability to protest governmental policy and action. Yet we also hate this particular form of speech because it cuts to the very symbolism of who we are as a nation and a people, a legacy of which we are, in general, very proud.

Congress responded throughout the 1990's by attempting to pass a constitutional amendment that would outlaw desecration of the flag. While the overwhelming majority of Americans and members of Congress supported the proposed amendment, a passionate minority spoke out and campaigned against the flag burning amendment. It was defeated or killed several times in the Senate after passing in the House of Representatives.

There are several problems with the proposed amendment considered by the Congress, the chief of which is how to craft a legal definition of a flag that wouldn't turn U.S. Attorneys into petty prosecutors and make us the laughing stock of the world. Would a T-shirt with an American flag on it be covered by the proposed amendment? If I threw such a T-shirt away, would that be considered a desecration of the U.S. flag? What if I had a bumper sticker of the flag on my car, and the sticker got scratched? Would I then be subject to prosecution?

While these hypotheticals might seem silly or far-fetched, they are not outside the realm of imagination, so people in power could twist the provisions of such an amendment if they wished to make political rivals go away. Or at the very least, to make life inconvenient for them. So the trick might be to craft constitutional wording that would express the importance of the flag as a symbol of America and her ideals while confining what might be considered a flag for the purposes of the amendment to a few, well-defined set of objects, such as flags that have actually flown over U.S. government installations (e.g., embassies, forts, legislative chambers, courthouses, etc.) or used in U.S. service (e.g., in military action, handed over to U.S. veterans or families, etc.). This last hedge would protect the provisions of the amendment from being used for blatantly political purposes while protecting the right of an individual or group to burn other representations of the U.S. flag in protest (or other actual U.S. flags that the burner owned or made himself). In short, the American people would be able to enshrine the importance of our flag as a symbol of the United States in a way that does not abridge individual's First Amendment rights.

With these purposes in mind, we would propose the following wording for a Flag Desecration Amendment to the U.S. Constitution:

Congress shall have the power to prohibit the physical desecration of any flag of the United States that has flown in an official capacity over United States property.

Secular Europe's Merits

Craig forward an article by Dennis Prager discussing the merits of Europe's embrace of Secularism. After reading the piece, I felt that the author made some assumptions with which I disagree. The columnist that was interviewed, Roger Cohen, might share some of the blame for using a poor analogy for Communism and Fascism. I didn't get to read Mr. Cohen's original article so I'll limit myself to examining Mr. Prager's response.

Using the total amount of people abused or killed by a regime as a metric makes as much sense as keeping the top-grossing movies list by the amount of money brought in using current dollars - it ignores inflationary effects. Just as ticket prices go up over time, so does the total population of Earth. Does that make Communism or Fascism off the hook, not a chance. It just means it's an apples-to-oranges comparison.

I'd also like to take issue with the contention that labeling communism and Nazism as religion avoids the issue. Those movements may not have been deity-centered but they still had common values and followers. I almost want to think that Mr. Prager didn't want the atrocities of those two regimes to be considered a religion because he doesn't want religion to be tainted by association. If anything, I'd say that considering them as religions brings some of humanities dirty little secrets out into the light of examination. Unless you accept that God spoke to every one of the Christians sent to the Crusades and told them to retake the holy land, it becomes easy to accept that all or the vast majority of all violence in history associated with a religion was actually motivated by a more human desire (politically, economic, or otherwise) and religion was the guise used to justify it.

In using G.K. Chesterton's quote "When people stop believing in God, they don't believe in nothing -- they believe in anything." might imply that only the godless propagate violence and that communism/Nazism are not religions. Is Mr. Prager trying to say that a Christian state has never slaughtered, tortured or ensalved people?

At the heart of the matter is that human nature has a dark-side full of greed, averice, lust, and hate. This is true regardless of what belief system controls the halls of government. Chesterton's quote is a statement of fact about human nature, not a glorification of religion. There are plenty of people who will believe 'anything', in Chesterton's terms, about 'God'. I've known people who believed that drinking wine was a sin; when it pointed out that Jesus turned water into wine, the response was "Brother (x) taught us differently!" It is not an indictment of religion that humans want to believe in something just as calling communism or Nazism religions does not make them guilty by association.

I'll put any further reply to this article in a new post, this one has already become longer than I intended.

The meaning of "person"

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
--Fifth Amendment to the U.S. Constitution

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.
--Section 1, Fourtheenth Amendment to the U.S. Constitution

I ran across this piece on Constitutional views of a person a couple of weeks ago. The article seems to unduly ramble in an attempt to address all possible arguments against abortion (e.g., social, religious, moral, and constitutional) and, in the process, does a very poor job of building a coherent narrative. Most of the points raised merely build strawmen to knock down or miss the point entirely, but the constitutional argument that the author makes for legal abortions is worthy of consideration. The kernel of the article argues that unborn babies cannot be considered "persons" in the constitutional sense of the word, since "person" had a specific meaning when the Fifth and Fourteenth Amendments were passed:

"Personhood" is a constitutional issue because the Constitution associates rights with "persons", as it would have to do. Not with "human life". For purpose of law, a "person" is a bundle of competences, including the competence to have interests and assert them as judicial questions in a court of law.

At the time the Constitution was ratified, the beginning of personhood was conventionally defined by birth, not conception, and the end by the cessation of signs of life, such as a heartbeat. That was done, in large part, because those were the ways that the bundle of competences could be ascertained, as a practical matter. Today medical science makes the points of beginning and ending less definite, but we are bound by the definition at the time of ratification of all legal terms in the Constitution, because if we allow subsequent opinions about meaning to be the basis for legal decision-making, there is no longer a "law" that can constrain government. To understand this problem, just consider that what the slave states were doing to maintain slavery was to redefine personhood to exclude blacks. They expressed it as a redefinition of "citizenship", ignoring that constitutional rights are attached to persons and not citizens, except for rights like the right to vote and hold public office. To change the definition of a constitutional term we have to formally amend the Constitution.

The author applies a strict textualist interpretation to the constitutional meaning of "person" and reaches the same conclusion about the constitutional meaning of "person" as Supreme Court Justice Antonin Scalia has reached. However, Justice Scalia goes on to say that neither does the Constitution prohibit protection of fetuses by the enactment of legislation:

The last sentence of section one of the Fourteenth Amendment does indeed say that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The word “person” in these provisions could conceivably be meant to include fetuses. That the Fourteenth Amendment does not employ the word in that unusual sense is well enough established by the very next sentence—the first sentence of section two—which reads: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” No one has ever thought that pregnant women must be counted (at least) twice. Philosophers, I suppose, can disregard this affirmation of ordinary meaning, but not judges who pay attention to text. Fetuses may well deserve the same protection against destruction as other human beings; and natural law may well give it to them; but the positive law adopted by the American people and entrusted to the enforcement of their courts does not—unless and until legislation to that effect is adopted. I believe, of course, that such legislation is entirely permissible, since the argument that the Constitution forbids protection has even less to be said for it than the argument that the Constitution confers it.
--Reference: http://www.firstthings.com/article.php3?id_article=81

Live by the textualist sword. Die by the textualist sword.

To waterboard or not to waterboard

The on-going debate Americans are having over whether waterboarding is torture is well-intentioned, but misguided. By any definition of the word, waterboarding is torture, so this reluctance on the part of the Administration to define it as such makes Bill Clinton's confusion over the meaning of "is" look sophisticated. In addition, Congress should be clear and pass specific rules that govern interrogations of people in U.S. custody, as the Constitution calls for in Article I, Section 8 (where Congress is delegated the power to "make Rules concerning Captures on Land and Water").

Nevertheless, I am conflicted by this. I think the two cases in which we believe the CIA employed waterboarding (on al-Qaeda member Abu Zubaydah and Khalid Sheik Mohammed) were more than justified. Waterboarding can never be condoned as a matter of policy or law, but in the limited context of our war against al-Qaeda, the actions of the CIA were justified. Rather than debating what the meaning of "torture" is and condoning the CIA destruction of evidence, the president should immediately pardon any CIA officers who were involved in the waterboarding of any al-Qaeda members. That would be more than a fair use of his powers as Commander-in-Chief.

The Proposed War Powers Amendment Revisited

Earlier this year, I proposed four amendments that I thought would shore up areas of deficiency in the U.S. Constitution, the first of which was a proposed War Powers Amendment. As with any set of proposals, these were meant to be conversation starters, not the final, definitive word on the issues at hand. In my proposed War Powers Amendment, I contended that a revision of the language around Congress's power to "declare War, and grant Letters of Marque and Reprisal" is required to clarify that only Congress has the power to bring the nation into a war. My proposed language of clarification is as follows:

The President, as Commander-in-Chief of the Armed Forces of the United States, shall not engage in any war without the consent of the Congress, except in cases of rebellion or invasion, and the danger is so imminent as not to admit of a delay till the Congress can be consulted.

As I have allowed this to marinate in thought and analysis these past few months, I am not sure that this is the most effective way to patch the system of war powers set forth in the Constitution. Specifically, my concern is two-fold:

1. The wording of the proposed amendment does not allow for any Presidential action in cases that are generally accepted as inherent to the President's "defensive" war powers, e.g., responding to an attack on U.S. embassies, mounting rescue operations for U.S. citizens taken hostage abroad, or engaging in overseas surveillance activities.

2. The most effective checks and balances are those that are procedurally-based. Relying on different or more words to control Presidents who ignore words already in the Constitution probably wouldn't yield the results that are needed to restore balanced war powers between Congress and the Presidency.

I recently read the War Powers Initiative, published by the Constitution Project, which analyzes the current state of war powers among the three branches of the U.S. government and gives several Recommendations for restoring balance. Not one of these Recommendations proposes a new constitutional amendment. In the view of the War Powers Initiative, the Constitution already has all the tools that Congress and the courts need to reign in presidential war-making. In the words of the report, Congress's authority to "declare War [and] grant Letters of Marque and Reprisal" is an exclusive grant of power over all forms of lesser and greater war making.

According to international law in 1789, a state could declare war either by “word or action,” as the influential political theorist John Locke put it. A state publicly announced the state of war “by word” by making a formal declaration of war
and delivering it to the enemy. A state initiated a state of war “by action” simply by committing an act of war.... Although Congress, as a legislative body, cannot itself also commit an act of war, it can authorize the President to act instead. The assignment of the Declaration power to Congress thus gives it not only the power to announce a state of war by formal declaration, but also to pass legislation authorizing the President to initiate war by using force. Furthermore, the Constitution also vests in Congress the authority to grant Letters of Marque and Reprisal to privateers to use force or to seize enemy property in retaliation for an injury to the United States.

So if a proper understanding of the current wording of Article I, Section 8 would resolve any confusion over Congress's role in initialing war and the President's required reliance on Congress for such an initiation, then trying to add to this wording might run the risk of constitutionally altering the President's ability to respond militarily to situations thrust upon the United States.

So while I am inclined to agree with the War Powers Initiative report that different constitutional language would not help matters in this area, I have been thinking of a different War Powers Amendment that might be helpful in restoring congressional involvement in decisions to both go to war and to stay at war. My revised War Powers Amendment is centered on the idea of writing into the Constitution the two-House legislative veto provided for in the War Powers Resolution. The following is my own suggestion to start the process of crafting such an amendment:

At any time that United States military forces are engaged in hostilities outside the territories of the United States, such forces shall be removed from the theater of such hostilities by the President if the Congress so directs by majority vote of both Houses.

Congress currently possesses the real power to cut off the President's ability to conduct military operations simply by not passing a bill funding those military operations. The leadership of either House of Congress or a determined minority in the Senate could refuse to allow an Iraq War funding bill to be voted on, and viola! The President would run out of funds in a few months and would have no choice but to withdraw American forces from Iraq.

Odds are low, however, that either Party will resort to cutting off funding to stop a war. The Party of the president does not want to be seen as disloyal to the president, and the opposition party does not want to be viewed as against the troops. While this is a false alternative, the desire among legislators to be viewed as patriotic Americans will color these types of questions for the foreseeable future. We could chalk this up to weak political will among Representatives and Senators, but that doesn't bring us any closer to checking the president's de facto war-making ability.

One could argue that additional war powers checks on the presidency are risky and unnecessary: risky because new checks might compromise his ability to defend the nation; unnecessary because the electoral college encourages the election of moderate presidents. After all, no president has engaged in war-making that has not at least been implicitly approved by Congress (even if only through passage of appropriations).

I think this is a weak argument, along the same lines as "you must fund this war to support the troops in the field." It's a red herring that its advocates parade about in order to smokescreen the underlying issue. If a war or some lesser military operation is vital to the national security or defense of the United States, then the executive branch should have no problem getting the support of a majority of the people's representatives in Congress. If a majority of both houses of Congress are for a war, then the majority of the American people probably support said war. If the American people turn against a war, they will probably elect the opposition Party to power with a mandate to stop the war, as they did in 2006 when they turned the Congress over to the Democratic Party for the first time in twelve years. And any war that does not have the majority support of Congress and the American people will generally be a war whose continuation will damage the United States more than its end.

President Bush was given authority by Congress in 2002 to wage war in Iraq, so all of those who label the Iraq War as "Bush's war" are engaging in nothing but unhelpful polemic. President Bush received the approval of Congress to go to war against both Afghanistan and Iraq, unlike President Clinton did when he conducted the 1999 air campaign against Yugoslavia. Nevertheless, public sentiment has soured on the Iraq War for several reasons (incompetent execution of the war after the fall of Saddam Hussein and continued in-fighting among sectarian groups in Iraq, to name two), and Congress seems powerless to do anything to effect the situation. Congress has seen limited success through its power of the purse in at least applying pressure, as evidenced by the adoption of the surge strategy around the end of last year. But the President's ability to veto any war funding bill with constricting conditions leaves Congress with the same false alternative that they cannot politically work around.

The idea of my new proposed War Powers Amendment would be to give Congress one more alternative in its chest of war powers. The President conducts the day-to-day execution of military operations, but he is not the sole decider of when the country should be committed to war. The Constitution requires the collective judgment of Congress to be sought before the country goes to war, and the collective judgment of Congress should be decisive in keeping the country at war. So if we could decouple the power of Congress to instruct a President to end a war from debates and perceptions around "funding the troops in the field," then perhaps Congress might find the political will to fulfill its constitutional duty to be a partner in the conduct of the nation's wars. This is the aim of this newly proposed amendment: if both Houses of Congress pass a resolution instructing the President to remove U.S. military forces from a theater of hostilities, then that resolution becomes law, not subject to a veto from the President.

This amendment would also carry a couple of other benefits: the power of the president to conduct lesser military operations could be constitutionally tolerated without fear of executive excesses leading the country into protracted, unpopular wars. The executive's hand is free for the short term (most Americans generally support this power, even if some operations like the 1999 Kosovo War are constitutionally suspect) while providing a relief valve that Congress can employ if a majority of both Houses can be convinced that the president has gone too far in some particular venture.

Another benefit is that this amendment would undoubtedly increase a president's willingness to negotiate matters of war strategy with Congress in the first place. A president would not wish to risk the ire of Congress if Congress has this procedural check at its disposal, so he would, I think, seek to make Congress more of a partner from the start. Members of Congress who have their own "skin in the game," so to speak, would see less of a need to resort to this power to legislate the end of a war.

As a concluding note, it is worth highlighting the inclusion of the phrase "outside the territories of the United States." This amendment would not apply to military deployments and operations within the United States itself, as this is really a different kind of situation. U.S. military forces would be operating within the United States in a non-training mode for two reasons:

1. combating an invasion force or repressing an insurrection, or
2. enforcing domestic laws

The first is a legitimate use of the Armed Forces. However, executive excesses would probably be tied to the second scenario, as might be the case if a President sought dictatorial powers through the imposition of martial law. This danger can not be checked by so simplistic a mechanism as envisioned by this amendment. A more general sweeping amendment governing the use and application of states of national emergency would be more appropriate. Perhaps the Posse Comitatus Act is enough to protect against this nightmare vision. In any case, I am not prepared at this time to propose constitutional protections for it.

Direct election of the President

There was some discussion in the 1970s of a proposed constitutional amendment to elect the president by popular election. One version of the proposed amendment can be found online here: 1977 version.

The reasons for desiring a change to the way Americans elect our President are obvious. "One man, one vote" has become the default election paradigm through various court rulings, constitutional amendments, and evolutions of our democratic traditions over time. That the states with smaller populations have proportionally more votes than the people of larger states through the electoral college seems inherently unfair to us.

Another reason to get rid of the electoral college is the problem of the faithless elector. While this has not historically been much of a problem, the possibility exists that a faithless elector or two could change the outcome of a presidential election in a very tight race, where one or two electoral votes separates the candidates.

The electoral college is not the institution that the Founders envisioned that it would be, if it ever was. The Founders meant for the electors to act as a "buffer" to the passions of the general public. They were to represent the people, but at the same time, they were to supply wisdom and deliberation to the selection of the Republic's next Chief Magistrate. Now, however, when a Party's nominee wins a state in the general election, said Party will choose loyal activists who pledge to vote for the Party's nominee when the electoral college formally meets. The electoral college has, in essence, become an out-of-date formatily.

As discussed in a 1970 report issues by the Senate Judiciary Committee, there are several benefits that the electoral college brings to American presidential elections:

• encourages the building of broad, geographically-dispersed majorities to elect a candidate that can win a majority of the electoral college, leading to more stable, moderate Governments that respect the rights of minorities;


• important support for maintaining federalism and the role of the States in the federal government (if we repealed the Seventeenth Amendment, I think this would be less of a worry);


• structurally enforces the U.S. two-party system;


• contains recounts to specific states or election precincts;


• allows control and responsibility of election process and administration to be maintained at the state and local levels, rather than at the federal level.

While I'm not sure about the claim that going to a direct election scheme would remove an underpinning of the two-party system, the support the electoral college lends to federalism and the containment of electoral recounts is obvious. Combined with the fact that State Legislatures have established direct election as the method by which their respective State electors are chosen (a power granted State Legislatures under the Constitution), and we can see why there is not the supermajority of support required to pass a proposed constitutional amendment to institute the direct election of the President. In essence, there are fifty state elections for president, rather than one national election. For the benefits that the electoral college bring, I'll be OK with the individual voter of Wyoming and Iowa having a greater proportional influence than the individual voter in Texas (my home State), New York and California.

The Unites States is, after all, a democratic republic, not a pure democracy.

Repeating History

The Bible speaks of the "sins of the father" being visited upon "the third and fourth generations", but what about repeating the sins of one's self? A disturbing pattern is beginning to emerge through Administration rhetoric that is suspiciously similar to the rhetoric that led up to the 2003 invasion of Iraq (which I supported and still do support). Whether war with Iran is justified or not, that is not the issue here. As Pat Buchanan writes today, there are proper means to accomplish a desired end.

If [Democrats] do not want war, and as Sen. Joe Biden says, he does not want war, why is his Foreign Relations Committee not holding hearings on what exactly Iran is doing in Iraq, how advanced its nuclear program is, what Iran is asking to stop short of nuclear weapons, what Iran is willing to pay for peace with the United States, and what we are willing to offer to get them to back off in Iraq and give up nukes?

If we are going to war, Congress, not George Bush, should take us into it. Isn't that how the Constitution reads?

John Yoo on the Unitary Executive

A recent speech by John Yoo to the Federalist Society provides some interesting insight to the current Administration's perspective on presidential power. A long-time proponent of what is known as the theory of the Unitary Executive, John Yoo uses the cover of a valid theory of constitutional (Article II) interpretation to push his extremist notions of presidential power.

I say the Unitary Executive is a valid option of constitutional interpretation because it is directly gleaned from Article II of the Constitution. To quote directly from the Wikipedia article:

The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive theory use this language along with the Take Care Clause ("The President shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."

While this might be a valid interpretation of the words of our Constitution, our tradition has evolved away from a strict implementation of the unitary executive theory. While the president retains vast power to direct the executive ship, there are areas of day-to-day governmental operation that we seek to rest above or beyond the realm of politics. For example, the Federal Reserve is not directly answerable to the President, although it is technically part of the Executive Branch. Same goes for independent agencies such as NASA or the Federal Election Commission. These agencies work in areas that Americans generally agree should remain free of the influence of presidential priorities and partisan wrangling. For the FDA, science is science no matter who is president.

Nevertheless, John Yoo thinks that everyone in the executive branch should be in lock-step with the President: "Every subordinate should agree with [the president's] views so there is a unified approach to the law..." He goes on to elaborate why the unitary executive is necessary:

“The president reacts to unforeseen events and emergencies that Congress can’t anticipate … like Sept. 11, that are outside the anticipation of written laws,” said Yoo. “The framers wanted a presidency that’s unified and can operate with speed and secrecy so they left [the office] with ambiguous limits on its power. It was not carefully defined, deliberately.”

Regardless of the defensibility of the Unitary Executive, Yoo's claims springboard into waters way beyond the realm of the theory. While Alexander Hamilton writes repeatedly in The Federalist Papers that the country needs an "energetic executive" or an "energetic government," I am not aware of any reference from the Founders that the Government should operate in secret. And they most certainly were not ambiguous on the limits of the presidency's powers. Checks and balances along with separation of powers are central to the framework that the Constitution erects. The president's realm is to execute the law, not make it or reinterpret it or ignore it. And the president (nor the Administration) certainly may not break the law, a la FISA-style.

When did Welfare become Welfair?

In considering Kelly's post on Bread and Circuses and the current consternation over health care reform tied to the gathering campaign for the 2008 presidential election, I have to wonder when our society's concept of welfare - the humane and laudable goal of providing a safety net for people when they fall, to give them a chance to get back on their feet - became welfair - the pervasive belief that everyone is entitled to exactly the same level of service, no matter one's net worth or available wealth.

First, I must say that I am sympathetic and mindful of the need to provide some level of basic service for those without medical insurance. Regardless of one's current state of employment, income or health, everyone in society is entitled to some basic level of care to keep them healthy and sane. I would even go so far as to concede that the government might be able to find an effective means of backing such a "stop gap" insurance plan, though such a program should be approached with caution. The last thing we would want is the Government to mess with what currently works in the American health care system. We just need to find ways to plug the holes.

Beyond my belief that the government might have a role to play in providing a base level of health care coverage, there is nothing in the Constitution that would say the federal government can or should play this role. As Kelly asks, "The downside is people who decry the resulting inequity as if every citizen deserves equal service regardless of their states economic condition. North Dakota has a lower average income from which to draw tax revenue compared to California so it follows that North Dakota wouldn’t be able to afford as much coverage for their citizens." Without the citizens of the more wealthy states subsidizing the citizens of poorer states through the bureaucratic nightmare of the federal government, a federal scheme is not possible. Even if this limitation could be overcome, it would not be desirable, given the proven inefficiencies of the federal bureaucracy. Better to keep any such governmental role at the State level.

Nevertheless, many on the Left look to Canada and Great Britain's socialized health care systems as some sort of panacea that Congress should adopt for the entire nation. They think it somehow "unfair" that people have different access to health care given different levels of wealth. We generally don't like the fact that the rich can afford more access than the average middle-class citizen restricted by the insurance companies or the uninsured shut out cut off from all but emergency care.

Somewhere along the way, though, our society's definition of "equality" morphed into something different that what the Founders understood. For the Framers, equality equated to what was right. Witness the words of the Declaration of Independence:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

Thomas Jefferson talks about equality being the ability of men (and women, by extension of our egalitarian ideals throughout the nineteenth century) to live their lives unoppressed by Government and free to pursue their passions and dreams as they see fit. But present-day concepts of equality has more to do with what people perceive to be fair.

We don't think it's fair that people with more money have access to elective surgeries that we might like for ourselves, but who, I ask, would they propose should define what is "fair" health coverage? If it is impossible for everyone to receive reconstructive breast surgery after a mastectomy, should no one be allowed to receive it? If Zoloft is too expensive to be given to everyone, should it simply be banned so that no one can be freed from their depression?

The things that work in America's health care system are driven by the free market. As we debate ways to bring some basic level of health care to everyone (a worthy goal for which we should work to make happen), let's not adopt the concept that equality can only mean sameness of level for everyone.

Bread and Circuses

Last I checked, good roads were not in the Constitution under the “Things government is supposed to do” category.

Funny thing too – education and health care are missing as well.

It might be something that only the government can provide on such a large scale. It does require a certain level of prosperity which we tend to forget. In times of war or major economic depression, from where will the money come?

Have we considered who gets to choose what procedures will be covered? Why should people in other states have a say on whether Texas covers RU-486? The only way to get around this issue is create a state-based system. The downside is people who decry the resulting inequity as if every citizen deserves equal service regardless of their states economic condition. North Dakota has a lower average income from which to draw tax revenue compared to California so it follows that North Dakota wouldn’t be able to afford as much coverage for their citizens. It also follows that California has many more people to cover which would draw down their average dollar spent per person much closer to North Dakota’s. If you want to find out about Canada’s system, ask about cosmetic procedures (costly but elective) or cancer treatments (life-prolonging but extremely costly).

If North Dakota wants to share in California’s tax revenue, they have to accept the strings that California places on the money. Most of the time people are too focused on the $-signs and ignore the strings until too late. It also trains the citizenry that when they get in trouble, they can always run to Uncle Moneybags. After you’re resigned to the first string, the following strings-for-money trade-off become less onerous until you find yourself as a marionette, dancing for your lunch money and resenting the puppeteer all the while trying to get another money ‘fix’.

Who will keep us safe from the people that claim to be keeping us safe?

Craig sent me this link about the Jose Pedilla case. He compared Bush's grab for power with Lincoln with the exception that Lincoln's America really *was* falling apart around him.

What’s even more disturbing is that Bush, Chaney, Rumsfeld, et. al. are all unapologetic, even when it turns out that they were wrong. There is no remorse or regret over these inhumane actions inflicted on a U.S. citizen at the behest of the Bush administration. Not to mention that the White House doesn’t lack defenders or apologists. There are people in the country who have placed their loyalty in a man to such a degree as to be indistinguishable from blind faith. The logic starts with “I trust Bush, he’s a good man” and “Bush is trying to defend the country” to become “Bush wouldn’t do anything that would hurt the country” which leads to “Whatever Bush wants to do must be good for the country”.

They are like buyers of a car-turned-lemon; unwilling to accept that they could make a bad decision so they turn to irrational arguments like conspiracy theories or demonizing the critics. Anything to keep from having to confront reality. The word for their disease is cognitive dissonance. They are vassals who shout "Long live the King" regardless of the atrocities committed in his name. They have become like cult followers; willing to drink the kool-aid because their trusted leader said it would take them to the Promised Land.

As a U.S. citizen, it bothers me to think that I could be held incommunicado in a military brig for years on the word of the President alone. The Constitution was meant to protect us from abuses of power just like this.

The greatest deliberative body?

The Senate was established by the Founding Fathers as the chamber of Congress that would carefully deliberate on the business of the Republic, providing balance to the more brash "people's" House. In that vein, the Senate has prided itself on being "the greatest deliberative body in the world." The filibuster and, beginning in the twentieth century, the cloture vote have long been used in the Senate to ensure legislation was not ram-rodded through, to ensure everyone's voice was heard and considered.

Over the course of the twentieth century, however, these tools have been "reshaped" in the name of efficiency, civility, and streamlining debate that they remain in name only. Once upon a time, a senator or group of senators would have really had to talk continuously to stall a bill. The committed minority could prevent closure of debate so long as they kept talking, but once they stopped (whether they stopped due to compromise with the majority, or by sheer exhaustion), the business of the Senate could resume. Now all that is needed is the threat of a filibuster for a small minority to stall a bill they don't like. The so-called "gentleman's filibuster" seeks to retain the goal of the old-time filibuster while removing all the pain and unpleasantness. After all, why should anyone be inconvenienced by all-night sessions or risk their health by talking themselves to exhaustion?

In order to prevent the minority from completely abusing the filibuster, the Senate in the 1960's lowered the bar on the number of senators needed to cut off debate to three-fifths (sixty of one-hundred). But even this is too high of a requirement for ordinary business. The filibuster and cloture vote are now used by minority parties (rarely does the majority have 60 or more Senate seats) to kill legislation it doesn't like. The intent was to slow legislation, not allow the minority to thwart the will of the majority.

The majority party colludes with the minority by withdrawing legislation that fails the cloture vote. This is right in line with, and indeed governed by, our "fast-food" culture - if we can't get something right now, we don't think it's worth working towards. Senators worry that the public will see them as wasting time if they are camped on one issue for weeks on end, but sometimes this is exactly what is called for. For compromise to work, it needs time, discomfort and close proximity to form and solidify. If a committed minority wants to stall legislation, they should have every right in the Senate to do so for as long as they can. But this means they are actively working - by talking through continuous, all-day, all-night, and all-weekend sessions - until they are no longer willing or able to do so. Then the Senate holds an up-or-down vote on the question at hand.

I was sympathetic to the Republicans' frustration over the Democrats' use of filibusters to stall the consideration of President Bush's judicial nominees back in 2005. But if the nuclear option was good then, why not now that the Democrats are the majority? But cloture votes and nuclear options would not be necessary if the Senate would simply make a filibuster a filibuster. If debate was allowed to take as long as it needed to play itself out, the Senate would once again be the world's greatest deliberative body.

What Price Loyalty?

Politics has always been a game. The majority of changes have been the players and the stakes. For over two centuries there have been two teams of lasting consequence. In a place where power and money are readily available and in large quantities, it is almost inevitable that there would come a time when somebody breaks the rules so blatantly that they deserve to have their head served up on a platter. What is amazing is that the guilty party still will have defenders regardless of the crime. The common cry is "It's a political witch-hunt!". While that may be true, let's examine those cases where the person is actually deserving of getting kicked out of town.

The most recent example is Attorney General Gonzales. His claim is that visiting John Ashcroft at his bedside in the hospital was not for the reason the then Acting AG Comey claim it was. Regardless of the actual reason, Gonzales is on shaky ground to claim any reason to visit Ashcroft, since Ashcroft no longer held the authority of the office of AG. Any action or decision taken based upon Ashcroft's approval would have been null and void as a matter of law, otherwise why bother with the formality of signing over the AG's powers to Comey?

Where am I going with this? What amazes me the most is when loyalty trumps common sense. With the innumerable blunders made by AG Gonzales, I start to ask why more Republicans have not withdrawn their support of him. I understand the desire to be loyal to one of their own party, but loyalty taken to that extreme can easily become blinders that keep the wearer from seeing the sunshine of the truth.

A politician who is willing to make excuses for the ineptitude of others -- Gonzales just being a current example -- has put politics before doing what is right.

What each political party could use is someone who is considered one of their own but who can still intercede in matters before members become so galvanized in their partisan trenches that they cease to see the damage they do to the party as a whole.

Professional sports leagues have commissioners that are hired by the owners to look out for the integrity of the game. In doing so, he can confront bad behavior, however legal it may be, with an eye for the broader prospective of the entire organization. He is entrusted make the unpleasant decisions that he can make because he doesn't represent an individual player or club. It is the highest expression of teamwork when teams themselves submit to a higher authority in the interest of the game itself.


When will the Republicans and Democrats realize that they need a Commissioner?

The problem with Roe and the Theory of the Governance Imperative

With Roe, the courts acted before the abortion issue was ripe. The Supreme Court felt the issue was in Stage 4 long enough among enough people that they felt it was time to act to release the public pressure. A counter example might be the Child Online Protection Act (COPA). When they declared the law unconstitutional, the courts (rightly or wrongly) were doing what they are constitutionally mandated to do - invalidating laws that are unfair applications of power. But Congress reacted as if the issue of indecent content was in Stage 4 when the issue had not achieved a critical mass among the population. Because of this, it appeared that Congress was embroiled in partisan politics.

Another thing can be said about this. Almost all highly-charged partisan battlefields might be around issues that are in this same state, where one of the branches is out of sync with the people. If the branch lags the people as the Supreme Court did with segregation, you get the Civil Rights Movement. If the branch is ahead of the people, you get Roe (in the case of the Supreme Court) or COPA (in the case of Congress).

True judicial activism is not to be found in decisions like Lawrence or the flag burning decisions. Judicial activism is to be found in decisions like Plessy and Roe where the courts begin bleeding into the domain of the legislature and created rights that were not mentioned in the Constitution. Contrast this with the Terri Shiavo case. Although the judicial activism term was thrown around quite readily, the courts were very measured in their response. They never created law out of thin air, while Congress tried to become the arbiter of what the law meant under the guise of changing the law. What is surprising is that no one accused Congress of violating the Constitutional ban on ex post facto laws. This is congressional activism.

So this all leaves us asking a few questions:

• Has this governance imperative theory been discussed before? If so, has it been limited to the intelligentsia in the Ivory Tower?


• Are we really the first ones who have uncovered the relationships here? Are we the first to ask the question "What's the underlying cause behind the charge of judicial activism?" Either the people don't understand the role of the courts, or the courts really are out of sync.

Live and let Die

Craig and I have had many discussions about whether the death penalty is appropriate and how it should be implemented.

Pro-Death penalty advocates claim that having capital punishment serves as a deterrent to crime.
Pro-Life advocates claim that all life is sacred and that we don't have the right to end anyone's life no matter how cold-blooded they might be.

A recurring argument is that the justice system allows too many truly innocent people be executed. This is one reason some State Governors have suspended capital punishment in their States pending further review.

Add to all this the times the Supreme Court of the United States (SCOTUS) has weighed in to determined whether capital punishment violates the "cruel or unusual punishment" clause in the Constitution. What is a pragmatic citizen to do?

How does the State choose between the principles of Justice and the Sanctity of Life? There will never be peace while the majority imposes the primacy of one over the other. I could write an in-depth treatise on this subject, and hopefully one day I will do just that, but for now, what action remains?

I suggest an Amendment to the U.S. Constitution that reflects the following intent:

States shall not impose Capital punishment without the testimony of two credible individuals who identify the accused as responsible for the death of another person, including by bearing false witness.

The idea is by having this in the Constitution, States have more leeway around 'cruel and unusual punishment' on one hand. On the other hand, by setting the legal bar very high, requiring two witnesses to the crime (mirroring the current constitutional bar for finding a person guilty of treason), we take away the vast majority of cases where the potential to execute the innocent exists.

Thus, our society will be saying that we believe in Capital punishment as well has 'innocent until proven guilty' and define the interaction explicitly. If two people conspire to frame someone for a capital crime there is only so much the State can do to protect society from those evil few who would bend the State's power do their personal bidding. When these false-witnesses are revealed, the State still will have the possibility of extracting Justice for the innocent. By explicitly giving the States the power to impose Capital punishment, we allow those States that so desire the option to use Capital punishment while allowing the People of any State the power to renounce it as they will.

This is just the sort of approach that seems to be right at home in the design of our framework for governance.

Proposed Amendment #4: Congressional Power Amendment

The Text:

Section 1. Congress shall have the power to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of Legislation from individual States.

Section 2. The spending of monies levied among the several States shall not be spent in such a way as to benefit a single State or small number of States.

Section 3. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.

Section 4. No law shall be revised or amended by reference to its title; but in such case the act revised, or section amended, shall be re-enacted and published at length.

Section 5. Congress shall pass no law that does not contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that law.

Section 6. No person who has been convicted of a felony (unless pardoned) in their State of residence shall be eligible to hold office as a senator or representative, and any sitting senator or representative convicted of a felony in their State of residence shall not be allowed to continue in their office. Senators or representatives who have been indicted of a felony shall not have the right to vote on any business before the House to which they belong. Indictments that do not result in a conviction shall restore the member's voting rights.

The Problem:
Our federal government was designed by the Founding Fathers to be one of limited, delegated powers, operating in spheres of life that rarely effected the day-to-day lives of the American citizenry. The federal government was there to coordinate foreign affairs, defend the Union from foreign attack and insurrection, and regulate interstate commerce. This list is a broad-brushed summary of the areas of responsibility given to the Congress in Article I, Section 8, but it is duly representative to be considered complete.

James Madison lays out this vision in no. 38 of The Federalist Papers:

But if the Government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national Government involves in it, not only an authority over the individual citizens; but an indefinite supremacy over all persons and things, so far as they are objects of lawful Government. Among a people consolidated into one nation, this supremacy is compleatly vested in the national Legislature. Among communities united for particular purposes, it is vested partly in the general, and partly in the municipal Legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controuled, directed or abolished by it at pleasure. In the latter the local or municipal authorities form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them, within its own sphere. In this relation then the proposed Government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general Government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact; and that it ought to be established under the general, rather than under the local Governments; or to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

And again, in The Federalist no. 45, James Madison writes:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

The operations of the Federal Government will be most extensive and important in times of war and danger; those of the State Governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State Governments will here enjoy another advantage over the Federal Government. The more adequate indeed the federal powers may be rendered to the national defence, the less frequent will be those scenes of danger which might favour their ascendency over the governments of the particular States.

Due to the contingencies of history and the convenience of the moment brought on by various national crises or challenges, the powers of the national government were incrementally expanded until they encompassed every sphere of everyday life. Even the regulation of water flow in our houses is not beyond the reach of the federal government. And all without one word being added to the U.S. Constitution!

The reality of what the federal government is versus what it is delegated by the federal Constitution are sorely out of line, and while most do not see it as any big deal, it will one day come back to haunt us if we do not bring the two back in line. Since reducing the federal government back down to the size envisioned by the Constitution, we are proposing an amendment to bring the Constitution in line with the realities of the day. It must be noted that while we would not have, all things being equal, advocated the current proposed amendment, but all things are not equal, the nation is where it is, and it is our view that less damage will be done in the long run if we amend the Constitution to reflect this fact.

The Explanation
Section 1. Congress shall have the power to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of Legislation from individual States.
Rather than continually trying to amend the Constitution to keep up with the ever-changing and evolving needs of the country through lists of explicitly-delegated congressional powers, this section would recognize what Congress has become: the sovereign law-making body is all spheres of American political and economic life. The wording of this proposed amendment is taken from wording originally posed by the Constitution's Framers themselves.

There is still a threshhold here that would be intended to protect the competent jurisdictions of the States, but the standard is less rigid that the current one set forth by Article I, Section 8. The realm of the Congress would still be problems or questions of an interstate and/or national scope. When combined with the Tenth Amendment and the proposed amendment to Repeal the Seventeenth Amendment, this would allow the flexibility and practicality of politics to determine the appropriate line between federal and state jurisdiction for whatever specific questions face the country at any given point of time.

This section would also remove any uncertainty regarding the proper scope of congressional power and legitimize the expanded role Congress has taken over the past 100 years. The original list of delegated powers has been stretched beyond recognition, so there is no reason to suspect that a newly updated list would fare any better in restricting congressional power. What is needed is built-in checks and balances, pitting the jealousies of each of the branches and the States between each other.

Section 2. The spending of monies levied among the several States shall not be spent in such a way as to benefit a single State or small number of States.
Since Section 1 would potentially open the doors of congressional power to any and every kind of problem, procedural checks will be important to help States or groups provide a counter-weight to Congress. While the Framers limited the powers of Congress to those listed in Article 1, Section 8 as one means to check congressional overreach, this list has proven to be nothing more than a "parchment barrier" (to use Madison's turn of phrase) as the necessary and proper clause of the Constitution has been used to stretch the originally-delegated congressional powers beyond any recognized shape.

This section would provide one such procedural check to the misapplication of congressional power by prohibiting the spending of money in ways that do not benefit the nation (or a broader group of States) as a whole. This would also have the added benefit of killing much of the present-day "pork barrel" spending that plagues federal budgets. If this provision were violated by the Congress, the States or interest groups would be able to sue the Federal Government is court in order to prevent the spending of the monies that were budgeted in violation of this section.

Section 3. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.
Section 3 is an adaptation from similar clauses in state constitutions that regulates how the Congress considers bills, adding another procedural check to protect against an enthusiastic Congress. Too many laws are passed that cover a wide-range of subjects, many having nothing to do with the main purpose of the bill. Every bill that is considered should relate to one and only one topic, and the topic that is considered by the bill should be easily understood and communicated.

Section 4. No law shall be revised or amended by reference to its title; but in such case the act revised, or section amended, shall be re-enacted and published at length.
This section carries forward the spirit of Section 3, regulating the revision and amendment of existing laws by Congress. The goal, again, is to bring clarity to what it is the Congress is considering and passing.

Section 5. Congress shall pass no law that does not contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that law.
While this might seem an obvious requirement and has been largely adhered until the recent past (for example, Congress and the Roosevelt Administration went to great pains to lay out the constitutional grounds for the Social Security Act), this would formalize the practice and ensure, at a minimum, that Congress at least gives a passing thought to the Constitution when considering legislation.

Section 6. No person who has been convicted of a felony (unless pardoned) in their State of residence shall be eligible to hold office as a senator or representative, and any sitting senator or representative convicted of a felony in their State of residence shall not be allowed to continue in their office. Senators or representatives who have been indicted of a felony shall not have the right to vote on any business before the House to which they belong. Indictments that do not result in a conviction shall restore the member's voting rights.
Section 6 is in some respects a rider to the amendment, but one we think is necessary to restore confidence in Congress. Currently, the onus is on the House and Senate to vote to remove one of their members convicted of a felony. This section will make mandatory the removal of a member of the House or Senate that has been convicted of a felony.

In addition, too many representatives and senators have wielded too much power while a cloud of suspicion hangs over them. While we wish to respect the American principle of "innocent until proven guilty," the proceedings of Congress must be preserved from the stain on credibility that even an indictment can bring. We recognize that this provision could easily be abused by a rogue district attorney in the senator's or representative's home state, so we would be open to tailoring this section to include protections against such possibilities (e.g., restricting the area covered by this provision to the home district, in the case of a representative).

False alarm!

I didn't think Kelly was being very fair in his analysis in his post Where there is smoke, there is fire. The following is the thread of our discussion about the post.

Craig: Geeze - you really stepped on a landmine with that post
Craig: Since when did you drift over to such a liberal position on the illegal immigration debate?
Kelly: You just don't like that I dropped Ms. Coulter's name...
Craig: Well, actually, I don't care much about her - but [your post] is pretty politically charged
Kelly: I'm not so much taking a position as expressing observations
Kelly: What's wrong with asking why we don't raise the limits?
Kelly: What's wrong with asking why we're letting the misuse of 'Amnesty' slide?
Kelly: What's wrong with pointing out that deporting millions of workers would be disastrous to the economy?
Kelly: How's that for turning the debate around?
Craig: What's wrong with asking why we don't raise the limits? Good question - I'll give you this one.
Craig: What's wrong with asking why we're letting the misuse of 'Amnesty' slide?
Craig: b/c it's not a misuse
Craig: What's wrong with pointing out that deporting millions of workers would be disastrous to the economy?
Craig: strawman
Kelly: read the Wiki page on that [i.e., Amnesty] word
Craig: I did
Kelly: I disagree about strawman
Craig: One at a time:
Kelly: but I will grant you that I'm thinking of it theoretically
Kelly: go ahead
Craig: Amnesty: what you say is true, but you can't stop there. Changing of [the] law does not rule out that it's amnesty either.
Craig: By the fact that people are given a pardon of their past crimes by the government is what makes it amnesty - in this case, to become citizens in a way that rewards their illegal acts of coming and staying here.
Craig: The change in the law is just the way that pardon is granted
Kelly: I take issue with the characterization that changing the law to allow citizenship is tantamount to a reward.
Kelly: that is false logic
Craig: Well, you can take issue all you want, it doesn't change the fact that it's true
Kelly: Think of it this way, I own a small hotel and need unskilled workers for maintenance and/or maid service. I'd like to hire people who are legal but when peak travel season hits, I'll hire whoever wants to work. If I can't fill those jobs, because of roadblocks from new legislation or tighter enforcement, I have to shutter rooms and possibly go out of business. Think of a small grower who needs cheap labor to harvest crops. What are his options? Hope Americans are willing to work for next to nothing doing manual labor? Maybe they can get workers but at a higher price. There are enough sectors of the economy that use this category of labor that it would cause a nation-wide impact. Prices would rise and inflation would go with it which means higher interest rates. Economic growth would slow to a crawl while inflation would balloon. That sounds too close to 'stagflation' for comfort.
Kelly: Now, on the "reward" logic, let me ask this. If you're speeding down the highway and the police pull you over, you expect to get a ticket and rightfully so. When the officer decides to give you a warning, is he rewarding you for speeding?
Craig: We've been through this before - the presence of the illegal underground workforce depresses wages to levels that Americans cannot afford to work at those wages
Craig: Assuming Americans won't do that work is elitist at best
Kelly: I'm not saying that Americans won't do that work
Craig: Of course prices would rise. But the illegals wouldn't be treated like slave labor either.
Craig: Where is the humanity is the status quo??
Craig: <<>>
Craig: When they let all the speeders go, that is amnesty.
Kelly: but I just realized a logical fallacy in that argument
Craig: What argument?
Kelly: We always talk about how low unemployment is right now, like 6%.
Kelly: But there is an assumption that the unemployed could work at any of the jobs available
Craig: No - reset and reorient the market to pay proper wages that aren't artificially depressed by illegal workers who are outside of the system.
Kelly: but there are industries where working out in the fields between positions would be tantamount to professional suicide
Kelly: but raising wages will cause inflation
Craig: So?
Kelly: unfortunate but true
Craig: Prices are artificially low
Kelly: I'm just saying that it is appropriate to consider realistic economic outcomes in the debate on immigration
Craig: I think people are. At least the conservatives are.
Craig: Inflation is a small price to pay to treat people humanely
Kelly: not the people who want to kick 12 million workers out of the country
Craig: and make sure they are protected
Craig: and not taken advantage of
Kelly: so now you're a democrat?
Craig: No, I'm a Christian
Craig: Nobody thinks this [i.e., deporting 12 million people out of the country] is a realistic option
Kelly: Every time I hear "But your rewarding them for their illegal act"
Craig: But they can be encouraged to go back home if ICE would crack down on Employers illegally hiring
Kelly: I can't help but think that they are advocating the undocumented workers have to leave the country before they can return and work
Craig: That is the principle
Craig: And that is not a bad thing
Kelly: So, what if they stay even when no one will hire them?
Kelly: and their family starves?
Kelly: Are we morally free of guilt because "They should have known they needed to go back home"
Craig: They would go back home - the same thing that drove them here would drive them back home.
Craig: We'd have nothing to do with the guilt or innocence - it's just the way humans are motivated.
Craig: People go where the opportunity is.
Kelly: That position advocates shrinking the economy on the matter of principle
Craig: So did abolishing slavery.
Kelly: the principle of "We can't reward them for wanting to come here and work for a better life"
Kelly: There is much support for the idea that slavery itself being an impediment to the economy
Craig: There is nothing wrong with people wanting to come here and work for a better life -
Craig: but they must do so within the legal framework we have established.
Kelly: So, why can't we raise the cap?
Craig: I have no problems with raising the caps
Craig: That would be a great thing to do
Kelly: Why isn't that an option I've heard in the debates?
Kelly: It's also the simplest solution
Craig: B/c everyone thinks "comprehensive reform" is the only option,
Kelly: Don't change any of the rules, just change the number allowed per year
Craig: and businesses don't want the illegals to come out of the underground b/c they would be forced to pay more.
Craig: That would be just fine with me
Kelly: It's "comprehensive reform" because do-gooders think they can design a better way to hand-pick new citizens
Kelly: that whole point system reminds me of the mess we have with our tax-code
Craig: Our current laws more than serve us, if they would be respected and observed
Craig: We don't need new ones
Craig: I was ecstatic when the immigration "reform" bill was killed in the Senate.
Kelly: I was too.
Kelly: So, back to my question, why has no one been more vocal about a simpler solution?
Kelly: The whole "close the border" rallying cry didn't sit well with me
Craig: As long as there is an underground workforce, Congress won't raise quotas
Kelly: I'm all for the process of law
Kelly: but I think there are too many people who never question the fairness or justice of laws
Kelly: Black/White thinking can be scary in these situations
Kelly: Throw out the baby with the bath water...
Craig: Yes, it can
Kelly: Cut off your nose to spite your face...
Craig: But there is nothing unjust about current immigration law, except that it is not enforced
Kelly: Those cliches sound like they are describing people who cling to black/white logic
Kelly: I'm actually fine with the current law and would support higher caps
Craig: I am too
Craig: and would as well
Kelly: I'm not sure what that does for the 12mil already here though
Kelly: Here is another fictional scenario:
Craig: They would go back home once the current laws are enforced through crackdowns on the Employers and the erection of an Employer Verification System
Craig: that is mandated by the 1986 law
Kelly: You drive up to the entrance to a toll-road that is 120miles long
Kelly: If you drive at the posted limit of 60 mph, you should reach the exit in 2 hours
Kelly: Now, you're in a hurry and have a fast car so you drive 120 mph and arrive in 1 hour
Kelly: If you were caught, you would be ticketed for the serious offense of speeding and you'd deserve whatever punishment the judge would throw at you. (note: tongue in cheek)
Craig: yes
Kelly: In your relief at getting their on time and not getting caught...
Kelly: You turn a corner, forgetting to use your signal, and get pulled over by the police
Kelly: When the officer approaches, he sees the toll receipt on your dash and can tell that you took 1 hour to drive 120 miles
Kelly: Here is the question:
Kelly: Can he ticket you because he knows you broke the law even though he didn't see you do it?
Kelly: Is your mere presence outside the tollway enough evidence to prove your guilt?
Craig: Is this a "What does Craig think it should be" question or "What does the current law say" question?
Kelly: Are you in danger for the rest of your life (statute-of-limitation be damned *sarcasm again*)?
Craig: Just as a preemptive - I know the parallel you're trying to construct - I don't think the analogy holds.
Kelly: Or are you in danger just for the next hour, because if you took 2 hours, you wouldn't have committed any heinous speeding.
Kelly: I want both answers. What does Craig think and what does the current law say.
Craig: You'd do better to draw a hypothetical picture to a thief breaking into a house
Kelly: I'm not interested in "But the law says this and that's all there is to say"
Craig: But I'll answer your questions, for fun.
Kelly: humor me on this one then I'll be interested to hear the house-breaking thief scenario
Craig: OK.... I don't know what the current law says.
Craig: So that leaves us with: What does Craig think?
Craig: I think the cop shouldn't ticket you unless he sees you committing the act
Craig: You're not breaking the law once he sees you
Craig: of speeding that is
Kelly: you mean unless he sees you?
Craig: No. I mean when he sees you, you're not speeding so he shouldn't be able to ticket you for that
Kelly: ah
Craig: That fits with the way I understand the law works, but I could be wrong on that.
Craig: The fact that he doesn't catch you doesn't mean you didn't break the law.
Kelly: I guess I'm in favor of a policy towards immigrants somewhat like the policy towards Cuban refugees.
Craig: what? send them back, like Elian Gonzalez?
Kelly: If you make it here without getting caught, you're fine. You're undocumented which *should* mean you can't get a job.
Kelly: If you get caught in the act, you get sent back
Craig: But the fact that such a soul is here means they are in the act of breaking the law as long as they are here
Craig: which is why your analogy doesn't hold.
Kelly: While I do believe that is possible to construct a law that does that, I no not support such a law.
Craig: a law that does what?
Kelly: I'm also not sure that that is what the current law says.
Craig: you lost me, sorry
Kelly: that your undocumented presence here is enough to prove your guilt
Craig: That is what the current law says
Craig: That is why ICE can detain someone who can't prove their legal residence here
Craig: and haul them before an Immigration judge
Kelly: What if my twin brother loses his birth certificate in a fire at the hospital and county courthouse that store it
Kelly: Now he can't prove he was born here
Kelly: The State can kick him our because he's undocumented
Craig: The State has his birth certificate on file.
Kelly: That's the copy that was destroyed
Craig: It's computerized
Kelly: a fire at the courthouse
Kelly: They have been lost before.
Kelly: My point is that the situation you describe with ICE sounds too much like 'guilty until proven innocent' for my taste
Craig: Of course it does.
Kelly: If the courthouse that stores birth certiticates burn down, then what?
Craig: They aren't stored at courthouses
Kelly: For the sake of argument, the hospital where you were born burns down too
Kelly: Let's say that they were
Craig: They are stored on disk farms that are backed up and archived
Kelly: The point is that since things like that can happen, it is not a good idea to say "Well, you prove that you should be here"
Kelly: and hold you in detention until you could
Craig: I think the 14th Amendment favors your view.
Kelly: There was a flight attendant that was arrested on charges that she committed a crime
Craig: If you are here, you are an American, you are one of us.
Kelly: the problem was she was in the air with 200 witnesses who could say otherwise
Craig: 1. she'd get a lawyer
Kelly: because the criminal stole her name, the State felt justified in arresting the Ms. "Smith" in their records
Craig: 2. the State would know if she is a citizen
Craig: 3. she'd go before a judge on habeas corpus grounds
Kelly: Even with a lawyer it took her weeks
Kelly: she did go before a judge
Kelly: the feds said, we have the right person
Kelly: It was a case of mistaken ID because the criminal stole it
Craig: 4. she should sue the State when she gets out for wrongful imprisonment.
Kelly: the innocent can't say "I'm not Ms. Smith" because she is.
Craig: But she can say I'm not the Ms. Smith you're looking for
Craig: A person's ID is established more than by just a name
Kelly: But the Feds never do anything wrong, it's wrong to accuse them of it or to insinuate that the good federal employees never make mistakes
Kelly: *sarcasm again*
Craig: You Statist!
Kelly: hah!
Kelly: I'm glad to hear about the 14th
Kelly: but Bush has done such a good job making Terrorists such a bogey man that we should ignore our rights
Craig: says who?
Kelly: They create an environment where it becomes difficult to question their actions
Kelly: Think Rumsfeld and his 'voting for a Democrat supports Terrorists'
Craig: So it's up to the People and the courts to push back on that
Kelly: which is why I'm hoping Congress grows a back-bone on the illegal wiretap subpoenas
Craig: Me too
Kelly: From one point of view, the Executive branch is 'The State' while the Legislative is 'The People'
Craig: Interesting analysis.
Craig: And what are the courts?
Craig: God?
Kelly: with the Judicial being a neutral third party
Kelly: that depends on whether you're asking DeLay...
Kelly: So, I know it galls some people that there are illegal immigrants in the country
Kelly: but is it not possible to find forgiveness in our hearts?
Kelly: and welcome them to the most wonderful country on Earth (note: no sarcasm)
Craig: "The hiils are aliive with the sound of muuuusic"
Craig: la la la la
Kelly: While it may be true that their presence has driven down wages
Kelly: It can be said that things would not instantly get better if they all went home
Kelly: Since they are already here, let's share the bounty of opportunity
Craig: Oh, I am certain things would become very hard for a time.
Kelly: We have more than enough to go around
Craig: Tell Parkland that
Kelly: which is proven by the fact that their presence has not make unemployment spike like so many other countries with large immigrant populations
Kelly: Parkland would have that problem regardless. Maybe to a lesser degree
Craig: I doubt it
Kelly: We'll always have resource allocation issues
Craig: At least it wouldn't be exacerbated
Kelly: So, unemployment is low, inflation is low, interest rates are low.
Craig: wages are depressed
Craig: there is an underground workforce
Kelly: Kicking out 12 Million people wouldn't make our 6% unemployment go down significantly
Craig: Yes
Kelly: but I'd bet that inflation and interest rates would skyrocket
Craig: Yes, I am sure you're right
Kelly: So, we like being the melting pot of the world
Kelly: but we only want to share with a small number of immigrants a year
Kelly: and we're willing to put our economic health at risk because we believe that the undocumented don't deserve the opportunity because they 'cheated'?
Craig: You make that sound like it's evil.
Craig: We accept the number of immigrants Congress says. The others should wait their turn
Kelly: Hence the 'cut off your nose to spite your face' comment
Craig: Just because they cheated to get here doesn't make them saints, or obligate the rest of us
Kelly: that sounds good in theory but now let's talk about reality
Kelly: I agree
Craig: You assume that is cutting off your nose
Craig: We've heard all this before, you know
Craig: It's more than just about the 12M here -
Kelly: how does letting them stay and continuing to earn a living a pay taxes obligate the rest of us?
Craig: we tried this amnesty plan before in the 80s
Craig: and it only encouraged more to come
Kelly: You can't blame the 80's amnesty for this.
Craig: Either the immigration laws mean something or we should just open the borders to any and all
Kelly: Blame poor enforcement
Craig: It's [the 80's amnesty bill] directly responsible
Kelly: Poor foresight
Kelly: Why do people resist the idea of raising the cap?
Kelly: The Dem's argument comes straight from organized labor
Kelly: "They'll depress wages!" is their cry
Kelly: I hate to break it to them but the cow's already out of the barn
Kelly: People who cry about amnesty being a reward are doing one of two things
Craig: 1. Concerned about the law
Craig: 2. Fair and humane
Kelly: They're saying that they feel so strongly about the principle of the rule of law that they're willing to sacrifice their economic well-being
Craig: yes - as were the abolitionists
Craig: The slave holders wanted to keep slavery around in the name of economic progress and health
Kelly: Which is all well and good (except the doubts I have about the lurking xenophobes)
Kelly: but what they're also saying is they want others to make that same sacrifice. Those others may not feel quite so strongly about the issue
Kelly: Is it fair for the, sometimes stridently, vocal minority to make that decision for everyone?
Craig: Then those others need to do what it takes to restore humanity to the people being treated as slave labor
Kelly: The abolitionists may be a good example
Craig: Right and there is more than one reason to uphold the law. If it's right and just, yes!
Craig: How about the Civil Rights Movement?
Kelly: but I think that they were willing but their sacrifice was unneeded but they didn't know that.
Craig: They were asking the rest of the country to change its behavior and attitude based on what is right and just
Kelly: The CRM was about humanity
Craig: So is this
Kelly: People crying about amnesty are not putting the principle of humanity at the top of their priority list
Craig: ??
Kelly: Kick'em out, I don't care if they starve in Mexico.
Craig: How do you know that [i.e., their motivation]?
Craig: You can't divine their motives
Craig: Who said that??
Kelly: They don't care what the effects will be.
Kelly: Ok, I'm only putting words in the mouths of the most extreme ones
Craig: You make a lot of accusations that you have no way of backing up with objective facts or quotes
Kelly: (that's more fun anyway)
Kelly: and the politicians in power do otherwise?
Craig: But you're not a politician in power. Ha!
Kelly: Even if you give them a fact, they'll spin it like a top
Kelly: Can we agree that facts and politicians aren't very good neighbors?
Craig: Isn't that what a politician calls "work".
Kelly: heh
Craig: For many that is true
Craig: Not all
Kelly: A politician who is willing to bend that fact is less concerned with accurate facts than they are perception of facts
Kelly: Where do you see the immigration debate being about being humane?
Craig: I see enforcing the current laws as humane to dry up the illegal labor market. Have you seen how undocumented workers are treated by some businesses. Third world and salve labor conditions.
Craig: It all needs to be brought out to the light of day
Kelly: ah, I see where you're coming from now.
Craig: There is nothing humane about the current state of affairs
Kelly: listen to understand...
Craig: yes
Kelly: but that doesn't apply to all undocumented workers
Kelly: There are some that would like to be here legally but we've put so many roadblocks up that they might as well feel like we don't want them here.
Kelly: it's almost snobbery
Craig: You'd have to get to specifics before I could agree or disagree
Craig: As a broad brushed statement, it doesn't stand.
Kelly: I don't care that you work, pay taxes, raise a family, own your home. If you aren't documented, you don't deserve to be here
Craig: yes
Kelly: So we kick everyone out because a portion of them are being treated inhumanely?
Kelly: what of the ones that are being treated fine?
Craig: Why do you keep trying to frame the debate as "kicking everyone out."
Kelly: Are we punishing them because we're trying to be humane to the abused ones?
Kelly: My apologies
Kelly: It's the conservative line that has stuck in my head
Kelly: It's what I hear when 'Amnesty' comes up
Craig: I am not aware of a single conservative that has advocated the position "to kick them out"
Craig: Everyone agrees that that is not doable. It can't be done.
Kelly: When I've heard about various compromises
Kelly: that provide ways for undocumented immigrants to become either legal or even citizens...
Craig: That only means conservatives don't want to validate their illegal activity
Kelly: the opposition characterizes the compromise as "Amnesty" and unacceptable
Kelly: that's why I wonder about the vehement response from those conservatives.
Kelly: I wonder whether they're hiding some other agenda
Craig: They're mads b/c amnesty was done in the 80s and it didn't work
Craig: We're still dealing with the same problem
Kelly: Do they really feel that anything except 'kicking them all out' is just another amnesty?
Craig: yes
Kelly: or are they hiding racial or xenophobic motives?
Craig: I don't think they have racist or xenophobic motives, but what if they did?
Craig: Does it matter?
Craig: The principle of upholding and honoring the law is still front and center.
Kelly: and since they are so vocal, my perception is that they represent those who don't want reform
Craig: That's just an unfair association on your part
Craig: The vocal anti-war crowd is not representative of the majority of people who want to hold the President accountable for the debacle in Iraq.
Kelly: Their motives are important because their intent for support or opposition should be taken into account when deciding the worth of their argument
Kelly: somewhat like, consider the source
Craig: Their argument stands on its own merits
Craig: Not the motivation of the argument's supporters.
Kelly: Right but they refuse to let others speak sometimes. As if disagreeing is the same as being disloyal.
Kelly: "I'm going to keep shouting my position until everyone agrees with me!"
Craig: That's just bad manners....
Kelly: It's like they don't want other positions to be heard
Kelly: are they so afraid of not being in the majority?
Craig: If the abolitionists were motivated by wanting to send all the non-whites to Africa, did it dilute the rightness of their argument to abolish slavery?
Kelly: You're onto something there
Kelly: but it's not the only reason to abolish slavery.

Where there is Smoke, there is Fire

The recent national immigration firestorm may be dying down but I'm left with some questions.

Why is providing a path to legal status or citizenship considered "Amnesty" by some parties in the immigration debate? Consulting Wikipedia tells us that changing a law does not equate to "Amnesty". Is this true concern for the rule of law or is this a smoke-screen used by xenophobes to feed the fire?

Here are some observances:
The sheer size of the group, an estimated 12 million undocumented workers, tells us several things.
- there are plenty of low-wage jobs to go around
- they keep coming, sometimes braving death
- our economy would be seriously hurt if they went home; who seriously thinks that all those jobs would be filled by US citizens were we even capable of deporting the entire group.

The fact that so many are willing to risk so much just for the opportunity means that we have something of extreme value. The fact that so many are here working and raising families means there is an abundance of opportunity in this country.

It's like we're a kid whose father owns a candy store but we insist on keeping our classmates out because we want all of the candy to ourselves despite the fact that we'll never be able to eat it all ourselves.

So, maybe we'll never agree on what to do with the 'illegals' already here. Kick 'em out and trigger a recession or let 'em stay and watch the conservatives have a conniption fit. I can just see Ann Coulter having a seizure and babbling on about ".. but they're illegals!"

We have an embarrassment of riches. We have so much economic growth that we can't fill all the jobs with our own citizens. What options does that leave us?

Problem: Too many jobs
Solution 1: fire the illegals and hope more citizens want to work backbreaking low-wage jobs
Solution 2: let them stay and pay a fine or otherwise become documented; this generates an undeserved whirlwind of "Amnesty"
Solution 3: send all the extra jobs overseas; ok, maybe we've finally found the theoretical limit to offshoring jobs, this is illogical for harvesting crops or landscaping

and the most overlooked?

Solution 4: raise the cap on the number of immigrants allowed into the country per year

If the supply of jobs is so high and the demand for them is even higher, why keep letting so few in? Our current policy is akin to rationing water during a rainstorm but making it illegal to use what is freely falling to our feet.

Of what are we afraid?