Thursday, April 7, 2011

Living in post-Constitutional America

In light of yesterday's blog on Connick v Thompson, I thought I would link a few previously-made points together in a single post to illustrate how far from 'a free society' we have wandered since the Constitution's keel was laid.

We have these facts in evidence:

  1. The avowed purpose of the writers of the Constitution (hereafter 'C~') was (paraphrased) 'to bind the government in chains'.  They wanted a government which could do the tasks it was assigned and unable to do anything else.
  2. As an addendum to this, the (so-called) Bill of Rights adds a wholebuncha 'thou shalt not's starting off with the First Amendment's 'Congress shall make no law...'.
  3. All this happened because the axiom of the American system, the Declaration of Independence, informs us that 'to protect these rights, governments are instituted among men' and furthermore 'all men are created equal'.

Comes now the Supreme Court of the United States (SCOTUS) which seems to understand none of this.  At least, there is no substantial evidence that they do.

In case after case, they agree, sometimes in overwhelming majority, that, yes, the government may feel you up at the airport without articulable probable cause merely because by your presence there you have waived your right to be free of unreasonable search and seizure; that, yes, the government may listen to your cell phone's emanations because you really can't have any expectation of privacy when speaking aloud in a public place, even from someone who can throw your ass in jail based on what they deliberately overhear; that, yes, the government may infringe your right to keep and bear arms when the government thinks it's a reallyreallyreally good idea to do so; that, yes, the government may take your house and give it to someone else who will pay higher taxes than you; and several dozen other, more egregious things.

Why might SCOTUS have such bizarre opinions, opinions which wind up being the law of the land, every bit as effective as the C~ they purport to implement?  They might have these opinions because government always wants to get bigger and more powerful.  There never has been one that didn't, so it's fair to suggest ours is not unique.  They might have these opinions because SCOTUS is an arm of the government and it could be said 'works for the government'.  They might have these opinions because each and every one of them came up through the ranks of government attorneys, having been DAs or AGs or assistants to them.  They are the government.

Because of this architectural need of governments to grow larger, there is an adversary relationship between the people and the government.  The C~ was supposed to block the government's ability to do bad things by, for instance, limiting Congress' powers to seventeen specific areas.  As a further block, the Bill of Rights specifically mentions several areas which the government is forbidden to enter.  Yet we have this odd situation: SCOTUS decrees that 'no right is absolute', that government may restrict rights when there is a 'compelling public need'.  Suddenly, government has become the arbiter of which rights we have and how far we may exercise them.  Those rights we received from God or nature because we are sentient beings have now been redefined as originating from government and thus modifiable by government.

Of those seventeen specific areas in which Congress may operate, one, the 'regulation of interstate commerce', has morphed into something bizarre.  Under its current interpretation, Congress appears able to do anything because everything affects I/C in one way or another.  We thus have a list of tasks for Congress to handle consisting of sixteen specific areas plus one other which is 'and anything else'.

The thirteenth amendment outlawed slavery — kinda.  "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States..." except that in time of war the government may force you to give up several years of your life, and possibly the entirety of that life, by drafting you into the military and sending you into combat.  The thirteenth amendment is the first amendment which applies not to the government, but to you, the citizen.  You may not have a slave, but your government may.

People ask why I believe we are living in 'post-Constitutional America'.  The answer is that the C~ we have now does nothing it is supposed to do and everything it isn't supposed to do.  We have become a police state and almost everyone thinks that's the way it is supposed to be: the land of the fee and the home of the slave.

We are where we are because of a concerted bi-partisan effort on the part of Republicans and Democrats to put us there.  If you think we shouldn't be here, if you think we should be somewhere else, there is but one solution:

Stop voting for Republicans and Democrats.  Get all your friends, relatives, and acquaintances to understand what Barry Goldwater used to say: "A government big enough to give you everything you want must also be big enough to take away everything you've got."

If you vote for Republicans or Democrats you are voting for ever-bigger government and you are part of the problem.  Be part of the solution.

Wednesday, April 6, 2011

Tipping Point

Allow me to make a quick plug for my newly-published novel, Tipping Point.  This is a tale of the next U.S. Civil War and so far all of the reviews have been of the "couldn't put it down" sort.  I'm really pleased with that.  Every new author goes through a period of self-doubt: did I just write a pile of crap?  Is anybody going to want to read this?

I'm feeling much better, now, thank you.  I'm gradually warming to the idea that I might actually have some talent for spinning a compelling yarn.

If you're inclined, please click that link above and get a short synopsis of the plot along with a sample of the story.  Then, if you like what you see, there's a further link there that will take you over to the Author House website where you can buy your very own copy.  That would make me feel even better than I do already.

Clarence Thomas Stumbles is complaining about a recent decision by SCOTUS written by Clarence Thomas and labeling it "one of the meanest Supreme Court decisions ever".  Well, yes, it probably is, but that's not Clarence Thomas' fault.  For one thing, the Chief Justice assigns the writing of opinions based on whim, more than anything else.  For another, all SCOTUS judges are bound by a concept called stare decisis, and can breach it only under the oddest of circumstances.

SLATE has found one set of such circumstances.

The key to the problem is another concept, prosecutorial immunity.  By this is meant that a DA cannot be held responsible when an injustice happens, e.g.: the wrong guy gets convicted.  There are obvious exceptions, such as when a prosecutor deliberately sandbags an innocent victim.  Being an incompetent prosecutor, however, is not a crime, so prosecutors can always put on their 'stupid' face and walk away from their misdeeds.  This is what happened in Connick v Thompson and SCOTUS largely has their hands tied.

That's the problem.  Prosecutors are not idiots, but they play one when they're in front of a disciplinary board of the Bar Association, and they almost always walk away unscathed.  The DUKE LaCrosse team case is an obvious exception.  There, the players were able to prove that the prosecutor targeted them for political purposes.  That prosecutor now sells burgers for the McDonald's Corporation.

Would you like to prevent future decisions like Connick v Thompson?   Silly question.  Yes, we'd all like to avoid the indignity of having our noses rubbed in our dysfunctional (soi-disant) 'justice' system.  The solution suggests itself.  'Prosecutorial immunity' is a flawed concept whose time has come and gone, and it's time for 'prosecutorial immunity' to go away as well.  When a DA or an AG withholds exculpatory evidence, even if there is no suspicion of wrong-doing, that prosecutor needs to have their license lifted, to be disbarred.  Forever.  In fifty states.

Too severe, you say?   How about 'executing the wrong guy'?   How about 'eighteen years in federal slam for somebody else's crime'?   No, it's not too severe.  In fact, it's the only way to make sure that prosecutors make 'justice' their first priority.  Absent this incentive, a prosecutor's first priority will be 'get the conviction'.  It's their ticket out of the DA's office.  God alone knows how many innocent people went to prison so that Rudy Giuliani could become America's Mayor.

Clarence Thomas clearly stumbled nonetheless.  After correctly interpreting the 14th amendment in the famous McDonald v Chicago, he can't claim ignorance.  Here was the perfect opportunity to point out that the 14th amendment guarantees 'equal protection under the law'.  Giving prosecutors a pass because they're prosecutors grants special privileges to one class at the expense of another.  Thomas should have struck down all laws offering prosecutorial immunity as repugnant to the 14th amendment's guarantee of equal protection (or at least offered that as his excuse for upholding the lower court's decision).

Tuesday, April 5, 2011

Security Theater

I've given up flying.

It's nothing to do with false modesty.   It's simply that I refuse to put up with security measures that do nothing to improve my odds of getting to my destination and which simultaneously violate both the Constitution and rules of common decency while putting me at an unacceptable health risk.   Don't even get me started on 'the presumption of guilty until proven innocent'.

I mean, really, if I were a suicide bomber intent on causing chaos, do you think I'd try to blow up a plane?   Puh-leeze!   After 9-11, there cannot be found anywhere under any circumstances an airplane full of people who will meekly stand by while someone tries to light their shoe or who will do anything but laugh at a hijacker with a Swiss Army knife.   Think about it.   Somebody announces they're taking over the airplane.   Even if they have a pistol, how much ammunition can they have ready-at-hand?   30-some-odd shots?   and while they're shooting at First Class, somebody in Coach is going to sucker-punch them into next Tuesday because everybody on board understands that they're all dead anyway if the terrorist gets hir way.

The terrorists understand that, too.   They know they might kill a dozen or so before they're brought down, and their chances of seeing an airport during their remaining lifetime is approximately zero, or close enough for government work.

No.   A terrorist intent on causing chaos buys a ticket on any flight and heads for the TSA checkpoint.   There the terrorist blows hirself up, killing 80, 100, maybe 200 waiting would-be-passengers, all the TSA agents, all the screening equipment, and turning the entire departure area into a crime scene.   Got it?   That terminal will not be used for arrivals or departures until the police forensics boys and girls are done collecting evidence, and there will be a lot of evidence to collect.

And all of this happened before the first TSA agent said "Please step forward into the scanner area."

Net result:   one dead terrorist, same as in the hijack-this-plane scenario above; dozens or hundreds of victims including a whole bunch of TSA grunts, lots more victims than the hijack-this-plane scenario above; no planes destroyed, but an entire terminal (in some cases, that will be the whole airport) shut down for the indefinite future.

You'll stop worrying about getting on an airplane.   You'll worry about going to the airport.

Hijack an airplane?   What?   Do you think those terrorists are stupid?   They may be crazy, but they are not stupid.   They may be religious nutballs, but they are not stupid.   They may be amoral killers, but they are not stupid.

TSA?   They're stupid.