Principle of Legitimacy

I recently read Malcom Gladwell’s latest book, David and Goliath: Underdogs, Misfit and the Art of Battling Giants. His books are a collection of data, combined with stories, making surprising, often counterintuitive, points. He and Charles Murray are the best I know at writing statistics books for general reading. And Gladwell’s tend to be less numbers-heavy and more weighted with stories. They can be a fun read.

His underlying theme, in David and Goliath, is that those who appear to be the underdogs might actually have advantages that aren’t obvious, but might explain why they win against the odds. With the David and Goliath story, he passes along various scholarly details, saying, “No one in ancient times would have doubted David’s tactical advantage once it was known that he was an expert in slinging.” (Notes, pp. 279-28.)

David was powerful like an artilleryman, as opposed to an infantryman. He was skilled and practiced, as boys of his day were likely to be, given time to practice. Goliath, on the other hand, may have suffered from a glandular disorder called acromegaly. Besides making him very large, it was associated with a partial blindness. So Goliath needed David to come in for close contact battle. All David needed to do was attack, with skill, from a distance. Essentially, Goliath brought a sword to a gunfight.

The book sorts through a number of underdog stories, from a girls’ basketball team to Martin Luther King, Jr., and the Civil Rights movement. Sometimes the stories seem only peripherally associated to the theme (my opinion), but they still make for an interesting read.

One of the ideas Gladwell talks about is the “principle of legitimacy” in leadership, or authority: “When people in authority want the rest of us to behave, it matters—first and foremost—how they behave” (p. 207). Among the many things in the book I was marking to recall later, this one got special attention.

Remember back in the 1990s, when the Clintons and their allies were lying to the American people and then eventually saying, “What difference does it make?” and “It’s only his personal life.” Remember that? I remember thinking of the William Cowper quote, "When was public virtue to be found when private was not?"

If a leader lies to the woman in his life he has covenanted with, and lies about it to the people he serves—aware that the behavior subjects him to the risk of blackmail—can such a person be trusted with the life and death decisions of the leader of the free world? I don’t think so. Nor would I trust anyone else who claims character has nothing to do with ability to lead.

Gladwell doesn’t continue on with the idea of personal morality, however. He looks at other behaviors that lead to authoritative legitimacy:

Legitimacy is based on three things. First of all, the people who are asked to obey authority have to feel like they have a voice—that if they speak up, they will be heard. Second, the law has to be predictable. There has to be a reasonable expectation that the rules tomorrow are going to be roughly the same as the rules today. And third, the authority has to be fair. It can’t treat one group differently from another (pp. 207-208).

Gladwell doesn’t seem to me particularly political. And if I had to guess, I’d say he leans slightly democrat. He does not go on from this point to talk about our current presidential regime. He talks about police in New York, English-Irish unrest in Belfast a couple of decades ago, and the end results of the three-strikes-you’re-out laws that started in California. All worth reading.

But I’d like to just briefly apply the three rules to this president.

·         People need to feel like they have a voice.  No.

o   This president doesn’t listen. No Republicans voted for Obamacare. Most Americans were against it, and have continued against it, with those percentages growing as the rollout continues to fail.

o   He refers to legitimate questions about an array of administration-caused scandals as trumped up faux scandals: VA deaths, Benghazi deaths and cover-up, IRS targeting of conservative groups…

o   He refuses to listen when Congress puts limits to his executive powers, and acts unilaterally outside the law

·         Consistency of rules over time. No.

o   Those seeking citizenship through the maze of legal means get turned away, sometimes for years. Meanwhile, illegals are invited and welcomed and forced on border states—and remember how Arizona was sued for being willing to help enforce existing laws? The administration claimed that it has the right to pick and choose which laws it chooses to enforce, and no state should assume enforcement is a good thing.

o   Obamacare doesn’t work—not news. So the president decides who gets exemptions, at his whim—or which rules will get postponed to after another election, breaking his own law.

·         Fairness from one group to another. No.

o   Voting violations will not be prosecuted by this justice department. When New Black Panthers were shown to be blocking voting places and intimidating voters, the DOJ said it wasn’t possible for African-American-skin-colored people (blacks, but we not supposed to use that descriptive word?) to be prosecuted for racist behavior.

o   Homosexuals, atheists, "green" businesses,and anyone else the administration favors currently, gets special treatment, exemptions, rules. But religious people are not allowed their God-given right to practice their religion. Under duress, the administration gave in and allowed exemptions for churches and religious nonprofits. It saw no need to extend that exemption to closely held companies, run by religious people, like Hobby Lobby. SCOTUS has ruled in Hobby Lobby’s favor, but only narrowly. And the dissent argument claims that the 1^st Amendment right to freedom of religion goes out the window when one enters the marketplace. Courts have put small businesses—bakeries and photographers—out of business when they refused to act against conscience.

When a solid majority of Americans disapprove of how the president is doing his job, and 67% believe the country is on the wrong track, that either means—as this president and his minions assert—that it’s simply because of his color. Or it means he lacks legitimate authority to lead—because of his behavior.

America--God Shed His Grace on Thee

Mostly I just want to wish everyone a Happy 4^th of July. What a blessing that 238 years ago some brave patriots gave birth to a new nation, “conceived in liberty, and dedicated to the proposition that all men are created equal!"

I’ve been thinking about the “list of grievances” in the Declaration of Independence. These are the things the patriots believed were their God-given rights, and expectations under the law as Englishmen. But the king had been ignoring the law, and their rights, and imposing upon them, despite their appeals through all legal and peaceful means.

By the time of the Declaration of Independence, the patriots had been engaged in fighting the British Army, their supposed protectors, since April 1775, more than a year of war already.

The revolutionaries of our founding were not trying to fundamentally transform England; they were trying to restore the rights their citizenship was supposed to grant them. In separating, they found a better way than a monarchy to guarantee those rights—by limiting government.

It still took more than another decade to settle into creating the Constitution, with its balance of strength and limitations. Our founding documents are brilliant—and inspired.

Some months ago I wrote about the different types of minds that gravitate toward “conserving” what is good or “throwing out” what isn’t perfect. This is the debate between two foundational thinkers: Edmund Burke and Thomas Paine (in Personality Divide, Part I and Part II). Either party can have a variety of thinking types, but there does seem to be an overabundance among liberals of those who see what they see as something imperfect in what we have, and expand that to hate the whole and want to start from scratch, their own way.

This difference in ways of thinking appeared again recently. A few days ago I learned of a study by Pew Research, that came out in June, concerning patriotism. Their studies tend to be exhaustive and detailed. But, the short version is, if you’re patriotic in America today, chances are great that you are a conservative.

Without delving into the specific questions, we can say that of “steadfast conservatives,” 72% say they’re proud to be Americans, of “business conservatives” (I’m not sure how this difference is defined), 81% are proud to be American. Of self-declared “solid liberals” only 40% say they’re proud to be American.

 

I haven’t studied this enough to say whether the data bears this out, but it might be that, if you don’t love the country enough to recognize her strengths, you shouldn’t be allowed to touch anything that might cause “transformational” change—because you don’t know a good thing when you’re living with it up close and personal.

Along those lines, I want to share one other thing today. This is a comparison of what happened after we won the Vietnam War—when liberals came in, failed to keep our promises, and allowed the enemy to come in and claim victory after all—and what is today happening in Iraq. I’ve seen this comparison in my own mind, but didn’t have the historical details to synthesize it. Bill Whittle does that clearly—as he does with so many issues. It’s worth watching on a day when we celebrate the brilliant, shining example of civilization that is America.

 

I love America. I love her goodness. I love her possibilities for thriving civilization. As one of our anthems says, "America, America--God she His grace on thee, and crown thy good with brotherhood, from sea to shining sea."

Letter to Mike Rowe

A week ago Mike Rowe, the Dirty Jobs guy, wrote about an experience he had in line at a liquor store, where the store owner posted photos of shoplifters he’d caught on security tapes. It’s an interesting little piece. My son Political Sphere came across it, and because the discussion included some legalities surrounding the public shaming, and Political Sphere being a law student and entertained by such thought exercises (it’s summer, and this was the weekend before a new internship started), he wrote his legal opinion. Which is NOT to be construed as legal advice, which he can’t legally offer yet.  

This is the shoplifter-in-action photo
from Mike Rowe's site,
with ID covered for legal safety

But, just for the fun of it, here is Political Sphere’s open letter to Mike Rowe, with tort law citations included:

_____________________ 

June 24, 2014 

Dear Mr. Rowe, 

I read about your experience with a lawyer at the liquor store the other day. I am only a law student and cannot give legal advice yet. I personally think that your lawyer gave you good advice to prevent a lawsuit, because lawyers such as the one you met at the liquor store exist. But I vehemently disagree with that lawyer’s assessment that the liquor store owner would likely lose; in fact I think that lawyer would be liable for malpractice if he pursued the case. Again, nothing I say should be taken as legal advice, but merely as my personal opinion (unfortunately, I must repeat and emphasize this to prevent my own liability, because, yes, this is what this country has come to). 

As I see it, there are likely only two causes of action the lawyer could consider pursuing here, both of which are likely to fail. The first is a defamation claim, alleging that the store owner has lessened society’s estimation of the person photographed. However, truth is an ultimate defense to any defamation claim. Therefore, the lawyer would almost definitely fail taking this course of action.  

The second option would be a claim for intentional infliction of emotional distress. This too is likely to fail, because the lawyer would have to convince a pool of jurors, made up of regular people (i.e. non-lawyers) such as yourself, that the actions the store owner took were outrageous. I cannot personally imagine that a person other than a scumbag lawyer like the one you talked to would see the store owner’s posting of the picture as outrageous.  

Besides likely failure using those two approaches, there’s an additional reason not to take on such a suit. The lawyer would be committing malpractice by encouraging the person pictured to file suit, because that action would identify the person to the store owner and the state. This identification would allow the store owner and the state to pursue charges on the criminal act the person is alleged to have committed.  

We’ll take the two claim options and then the reasons for malpractice in order. 

First, there are variations of the defamation cause of action in each state, but the lawyer is unlikely to succeed on a claim of defamation, because the statement is true. Generally, to incur liability for defamation, either libel or slander, there must be (1) a false statement, (2) the false statement must be defamatory, (3) the statement must be made to a third party, (4) the person who made the statement must have committed at least negligence in determining the falsity of the statement, and (5) the statement must have caused harm. Restatement (2nd) of Torts § 558. Here, based on what was explained, element one is not met. 

A person is not liable for a true statement. Restatement (2nd) of Torts § 581A. When a statement is defamatory per se (defamation per se is a defamatory statement that is naturally going to decrease the person in the eyes of the community, such as accusing the person of a crime), then a presumption exists that the statement is false. E.G. Thomas v. Bowen, 29 Ore. 258, 266-67 (1896). In Thomas, a newspaper printed that the plaintiff was guilty of larceny before the plaintiff had been convicted of the crime. Id. at 266. The Court observed that because the law presumes that a person is innocent of a crime until the person is proven guilty, then charging a person with an indictable offense is presumed evidence that the statement is false. Id. Thus, the defendant has the burden to prove that the statement is true. Id. 

In the case you mention, I would presume that the people pictured have not been charged. Therefore, the presumption is that the person is innocent. However, the defendant may rebut the presumption and show its truth. This fact alone makes it unlikely for the plaintiff to win, because the store owner explained that he maintained video evidence of the people shoplifting. Therefore, the store owner should be able to rebut the presumption.  

Second, a suit for intentional infliction of emotional distress is likely to fail, because the average person will not see the store owner’s actions as outrageous, and may not even consider the person severely emotionally distressed. To succeed in a suit for intentional infliction of emotional distress, the lawyer must be able to show that the store owner (1) by extreme or outrageous behavior, (2) intentionally or recklessly, (3) caused, (4) severe emotional distress. Restatement (2nd) of Torts § 46. Following your discussion as it was relayed in your letter, this is the more likely path the lawyer was considering. The lawyer claimed that he would be able to show that the person pictured was emotionally distressed and that the store owner was the cause of that distress. He continued to compare the punishment through the legal system with the public shaming used by the store owner.  

However, the lawyer is unlikely to win, primarily because, despite his claim, a jury would not consider the public shaming utilized by the store owner as extreme or outrageous. The comment provided by the restatement explains: 

The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" 

Restatement (2d) of Torts, § 46. The lawyer would fail to meet the burden explained, because posting pictures of people the store owner accuses of shoplifting does not exceed the bounds of all decency. Consider that, though it is often for somewhat higher crimes, even the police will post pictures of accused parties. Indeed, the police will plaster video of accused robbers all over the evening news. Here, regardless of whether the store owner has malice, it is hard to see a jury deciding merely posting the pictures in the store is extreme conduct. Therefore, it is unlikely that the lawyer could succeed on a claim of intentional infliction of emotional distress. 

But even if the lawyer were able to convince the jury that the store owner’s conduct was outrageous, the lawyer would still likely lose, because the lawyer would be unable to show that any emotional distress suffered by the person pictured was severe. As the comment to section 46 of the restatement explains, “The rule stated in this Section applies only where the emotional distress has in fact resulted, and where it is severe.” Restatement (2d) of Torts, § 46. The restatement continues, “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” Id. Further, “The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress.” Id.  

Here again, the lawyer would have to convince the jury, comprised of normal people unlike himself, that the person pictured suffered severe mental anguish, beyond what any reasonable man could be expected to endure, which anguish is reasonable and justified. I know this is conclusory, but I think the lawyer would be hard pressed to show that the distress was severe, much less that if the distress is severe that the distress is reasonable and justified when all that the store owner did was accuse the person of shoplifting and posted the picture in the store.  

In summation, the lawyer would likely lose a claim of intentional infliction of emotional distress. Any emotional distress caused is unlikely to reasonably and justifiably be severe, and I doubt that a jury of thinking Americans would consider posting the picture of an accused shoplifter to be “utterly intolerable in a civilized society.” Thus, the lawyer has no claim against the store owner. 

Additionally, if the lawyer were to bring a suit against the store owner, the lawyer would likely be liable for malpractice. By bringing the suit, the accused shoplifter has identified himself/herself as the person pictured. Thus, the store owner would be able to counter sue for restitution from the shoplifter, and the state would be able to charge the shoplifter for the criminal act. In my experience, the only reason that the state would not already have charged the individual for shoplifting and ordered restitution is because the state does not yet know who the person in the video is. By filing suit, this barrier to charging the individual with the crime disappears. 

In conclusion, the lawyer you talked to would likely not only have lost the claim for either defamation or intentional infliction of emotional distress, but subjected the client to jail time, restitution, and a criminal charge on the client’s record. It is irresponsible to open a client up to such liability. As such, the lawyer would likely be liable for malpractice for being stupid enough to represent the client in suing for defamation. 

There are, unfortunately, bad lawyers who would file this type of litigation, thinking that the suit would likely succeed. But the majority of lawyers would recognize the slim chance of recovery in this case and refuse to act as this lawyer claims he would. I hope this gives you a little more faith in the legal system.

Sincerely, 

Political Sphere

A Good Day for Religious Freedom

My plans for today’s post went out the window this morning when I learned the Supreme Court had ruled, at last, on the Hobby Lobby case. Big news!

Hobby Lobby story, photo from here

It is a 5-4 decision in favor of Hobby Lobby, ruled narrowly. In short, closely held companies, such as Hobby Lobby and Conestoga Woods, cannot be forced to pay for employees’ contraceptive methods that, in their religious view, terminate life. [Note: the case is now referred to as Burwell v. Hobby Lobby, rather than Sibelius v. Hobby Lobby; Burwell is the newly appointed head of Health and Human Services.]

These companies already pay for (and have all along) insurance coverage for many methods of birth control, but refused to pay for four specific methods that are abortifacients (terminate a fertilized egg). They will still pay for coverage of those other contraceptives. But they will not be forced to go against religious beliefs to pay for these four specific ones.

The ruling is narrow, because only closely held or family owned companies get the exception. Larger, publicly held corporations are not granted the exception—even if every member of the board has strong religious beliefs and they have always directed the corporation according to those beliefs.

The ruling is further narrowed, because it only addresses this particular religious conflict in the ACA; it does not necessarily apply to other religious conflicts with other laws.

Despite the narrowness, I accept this as a victory for religious freedom. Also despite the narrowness, Ruth Bader Ginsburg’s dissent claims it is overly expansive, and brings on a flood of so-called religious belief conflicts, which she will find annoying. She says,

Reading the Act expansively, as the Court does, raises a host of “Me, too” questions. Can an employer in business for profit opt out of coverage for blood transfusions, vaccinations, antidepressants, or medications derived from pigs, based on the employer’s sincerely held religious beliefs opposing those medical practices.

The dissent seems to be really miffed that a for-profit entity can be considered to have religious beliefs and/or rights. In other words, the concept that was defeated in this 5-4 ruling is whether trying to make a living in the marketplace means you forfeit your religious freedom rights.

Ginsburg, et al., ought to read the relevant religious beginning of the First Amendment—again:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

It doesn’t add the proviso, “unless and until a citizen chooses to participate in for-profit enterprise.” Ginsburg’s assertion that such a proviso is implied separates her from those who read and understand the law. She identifies with those who decide the law is what they believe it should be.

That battle goes on, despite today’s victory.

The ruling is based on the RFRA law; i.e., the Religious Freedom Restoration Act. It outlines specific limits the government may not cross. According to RFRA, government may have a compelling interest that could override a person’s religious belief. Alito’s majority opinion included reference to these closely held companies as “persons”:

As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends.

Government must not only show that the interest is compelling; it must show that the law is the least restrictive approach. Pushing aside the significant religious issues, Ginsburg claimed that paying $26 million or so in fines wasn’t an undue burden, since it’s only approximately equivalent to the total costs of providing health insurance (to be clear, the fines would be on top of the costs of providing insurance). However, Alito and Kennedy both pointed out that government has already found ways to accommodate organizations that qualify as religious non-profits, and those accommodations could be used to accommodate these for-profit organizations.

So today’s ruling pointed out that having religious people go against their beliefs to pay for insurance coverage of those additional four “birth control” methods was not the least restrictive approach.

The compelling government interest this is compared to is racial discrimination. The court says, "The Government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." So this ruling will not be expanded to include this issue unrelated to the ACA, so Ginsburg's fear is unfounded.

The Court fell short today of ruling whether the ACA itself violates the First Amendment. That question came up in the SCOTUS Live Blog. Since this ruling is limited to following RFRA, if RFRA were repealed (or exempted for the ACA), would that then reverse the ruling currently in Hobby Lobby’s favor?  Under those speculative conditions, the Court would eventually have to rule whether the ACA itself violates the First Amendment.

One thing about this Roberts Court, every time it rules, relating to Obamacare especially, it rules as narrowly as possible, so that little can be made of the ruling beyond the specific case. There’s some value to that. Still—we would not be in this mess if Roberts had simply ruled logically that forcing American citizens to make a purchase the government prescribes is beyond the powers granted to a limited federal government.

I believe there is still plenty of reason to hope we can get rid of Obamacare in its entirety. At least today’s ruling incrementally helped, rather than hindered, the goals of free American citizens.

Want to read more on this case? The first three are posts I wrote previously. The others are pieces I came across today.

·         Corporate Religious Freedom, 12-13-2013

·         Essential Religious Freedom, 2-6-2014

·         Fractious Fractional Argument, 3-24-2014

·         NPR report

·         IJ Review report

·         Buck Sexton on Glenn Beck Radio Monday morning

·         ACLJ (American Center for Law and Justice) report

·         SCOTUS Blog analysis by Lyle Denniston

Supreme Court Sampler

It’s that season, when all of us watch, with nailbiting expectation, to see who the winners and losers are.

No, I’m not referring to World Cup Soccer. That’s for normal households. In the Spherical Model household, we’re watching the Supreme Court rulings come in. (If I had a graphic arts team here at Spherical Model, I'd have justices in robes kicking around a soccer ball in a grand stadium. Please imagine that here.)

The biggies for this session (Hobby Lobby and others who don’t want Obamacare to force them to purchase things against their religious views) have not shown up yet. There are still a few more days.

But there are a few things that appeared so far this week.

Recess appointments--Canning v. NLRB (National Labor Relations Board)

This was a 9-0 decision, slapping the president’s hand for reaching into the power cookie jar. But it isn’t as strong a rebuke as it could have been. The Constitution expects presidential appointments to be subject to Senate approval or disapproval (advise and consent). The president doesn’t like to submit to that—even though he has a Democrat Senate, because there are enough Republicans that might bring up the inappropriateness of many of his appointees. He is not the first president to misuse the recess appointment procedure.

It’s in the law because, at the time of the founding, when the legislative branch took a break and people returned to their home districts, it could take weeks to call them back to reassemble. If a need came up during their absence, it made sense to make a temporary appointment, so work would not be held up.

It doesn’t take weeks to recall the Senate now. But the Constitution doesn’t include reasons and intentions, so presidents have used this clause for their own political purposes—more so as transportation becomes less and less an issue. The SCOTUS today ruled that, while the president can indeed appoint during breaks in session, he can’t decide that a long weekend is a break. Even 10 days is probably too short a break. The justices fell short of defining the length of the break, but clearly ruled that the president shouldn’t be doing what he’s been doing.

The more conservative members of the Court held that the rule should be when the legislature is actually not in session—probably just during their annual August break. I’m with them. My son Political Sphere suggests that they ought to have also added the requirement that the appointment be urgent, couldn’t have been made in time before the legislative session ended, or couldn’t wait until the legislative session was to meet again. And of course such appointments ought to be approved or disapproved as soon as the legislature meets again—rather than just letting the appointment stand. In other words, change the expectations for Senate approval of appointments back to what the Constitution requires. What a concept.

I heard several times today that this ruling was the 12^th (maybe 13^th) time SCOTUS has ruled unanimously against Obama’s executive power overreach.

Buffer Zones at Abortion Clinics—McCullen v. Oakley

In this Massachusetts case, there was a rule that within a 35-foot buffer zone, no one could enter the space near an abortion clinic except patients, workers, and anyone with business in the vicinity. In other words, no one could approach someone who might be going for an abortion and offer them “counseling,” or information that might sway their behavior.

This is a free speech argument. We’re talking about public sidewalks, which are traditionally places where demonstrations of speech are legal. And here the restriction is on specific speech on a specific topic—to prevent anti-abortion speech. Why that speech? Why is that targeted, but other speech could be allowed other similarly public locations? What makes the public space around an abortion clinic a non-free-speech zone?

The Obama administration supported censorship. The plaintiff asked for support of free speech rights. While there could be a safety issue to consider, the government must choose the least intrusive alternative. The Court could see that banning all free speech in a specified area, mainly to prevent speech on a specific issue, was not the least intrusive means. (A good discussion was on Hugh Hewitt's The Smart Guys segment Thursday--available by subscription.)

Here are a couple more of the rulings, with links to read further:

·         EPA Greenhouse Gas Regulation—Utility Air Regulatory Group v. Environmental Protection Agency (read here and here).

·         Cell phone searches require warrant—Riley v. California (read here and here).

Meanwhile, in the Tenth Circuit Court, the state of Utah has been disallowed to define marriage. You’ll probably read errant headlines that the state’s ban on same-sex marriage has been found unconstitutional. That’s not really accurate. The 3-judge panel of the 10^th Circuit ruled against the state, in a 2-1 split, based on the Windsor ruling of June 2013, which decided that the US DOMA law was wrong to define marriage as between one man and one woman if other entities (i.e., state governments) defined it differently. In other words, the Supreme Court was leaving the defining of marriages to the states. But every time it has come up since then, some court has decided that states do not have the right to define marriage as between one man and one woman, because it’s unconstitutional. Hmm.

So, the courts are ruling that defining a term in a contract cannot be done at the federal level nor at the state level. That is very troubling. So how can governments define terms in a contract? The way the unelected and nebulous but powerful politically correct police say they can, according to the whims of the day—of course.

In this case, Kitchen v. Herbert, the steps may include appeal to the 10^th Circuit en banq (the full panel of 10^th Circuit Court judges). That may or may not be tried or accepted. If it is, then that court will hear the case first. If not, it could go to the Supreme Court as early as this coming fall. In the meantime, the Court stayed its ruling (will not in the meantime allow same-sex “marriages” to take place while the issue isn’t ultimately settled).

Fears Realized So Far

Back in 2008, well before I had this blog, I wrote down the fears I had following the election of our current president. I used Facebook Notes, so I could look back at them later. 

The purpose here today is not to praise my prognostication skills; we have plenty of evidence of how limited those skills are. Rather, if there are things I knew easily in 2008, then there’s no reason to be surprised about them as they happen. 

Another day we’ll tackle the things that went beyond what I imagined.

Bold type means I was proven right, by 5 ½ years into the administration. Plain type means maybe I was wrong, or at least we don’t have obvious evidence yet; some of these were on my mind at the time, but haven’t kept my attention, so I might not know enough. Comments added today are in brackets and italicized. 

 

Fears in Wake of Election

November 6, 2008 

• Troops will be quickly removed from Iraq, leaving that country vulnerable to invasion by Iran or other forces—breaking the word of the US and ruining our chances of being trusted in a coalition in the future.
• Using troops for actions where there is no threat to US interests, nor request from US allies, such as Darfur. And, further, that US troops will be placed under the control of the UN, negating our sovereignty. [Syria could be an example. There are numerous examples of trying to subject us to the UN. But it hasn’t been as in-your-face military submission as I feared.]
• Borders will not be enforced; “illegal alien” will cease to have meaning, since anyone here will be given citizenship rights, including welfare, draining the treasury and endangering the populous. [Granting of actual citizenship with voting hasn’t yet been accomplished—in part because of citizen outrage in 2010 or so.]
• Porous borders will enable terrorists to enter the US, as well as drug trafficking and other illegal trade. [And human trafficking and sex trade, which I didn’t foresee.]
• A major terrorist attack on US soil will soon happen. [Boston bombing is one; many have been thwarted, fortunately.] Efforts to protect the US, such as listening in on conversations between terrorists, will be prohibited. [No, I was wrong on this; what I didn’t foresee was the extent to which this administration would target citizens and claim they’re protecting us from terrorists. I should have known that, if something is a power, this administration will take it and run way beyond the limits.] Perpetrators will be prosecuted as citizens through the judicial system, rather than as wartime enemies. [Yes, often against military council, but sometimes prevented because the court system requires revealing our intelligence gathering methods to the enemy combatant and his legal team. Which is why GITMO exists, and hasn’t yet been closed down.]
• Funding will be cut for the military, making it less able to defend us in the world. [Military generals suggest we can no longer sustain two war fronts, if called upon to do so.]
• Equal funding will be spent on some nebulous “civilian force,” as Obama suggested, with equal funding and power as the military, to be used purportedly for natural disasters, but in reality to be used as enforcement against US citizens. [I don’t know if the funding is equivalent to military. But the recent BLM example is one; the BLM is made up of geologists, mineralogists, mapmakers, bureaucrats—and now also apparently its own SWAT teams. FEMA and Homeland Security also strike fear in the heart of innocent citizens.]
• “Fairness Doctrine” will be enacted, removing free speech from Americans with opposing (conservative) points of view, starting with talk radio, but eventually will not be limited there (fear for internet). [This has been attempted, again recently, but has been unsuccessful because of constant vigilance.]
• People speaking out against the president or his policies may be attacked and speared (as were Joe the Plumber and Sarah Palin). [The IRS scandal, showing targeting of non-profits the administration dislikes is well beyond what I envisioned; it’s closer to totalitarian regimes.]
• Repeal of 1996 US DOMA law, and eventual enforcement of “same-sex marriage” in states that have laws and constitutions against it—ignoring the sovereignty of states to make these laws. This will lead to prosecution for differing views, loss of freedom of religion, loss of freedom for parents to decide on education of their children, loss of business freedom to refuse service when it goes against personal beliefs. [Yes. Some questions of state sovereignty are going through the courts, which is a tenuous thread for civilization to depend on. Note that I wrote this when the president was declaring he supported traditional marriage—because it was politically advantageous for him to say so at that time, but I knew better than to believe him.]
• Taxes will increase on anyone considered rich (possibly as low as $42,000/year), as is certain to happen when Bush tax cuts expire in 2010, but taxes are likely to be raised on most taxpaying Americans in addition to that.
• Taxes will increase for small businesses, causing less entrepreneurism, fewer jobs.
• Taxes will be increased on corporations, leading to businesses leaving the US to locate in more favorable countries—which will mean less wealth created in US, and lower employment.
• Tax will increase on capital gains, reducing incentive for investment, causing stock market drop. [Truthfully, I haven’t paid enough attention to capital gains rules to know how much effect this has had on the economic malaise, which has so many presidential-policy causes.]
• Social Security taxes will be levied on income above $102,000, instantly raising rates for these earners by 7%, without any compensating benefit. [This was being discussed in 2008, including by John McCain. It hasn’t been accomplished. The upper limit continues to rise a bit annually, and is $117,000 for 2014. Social Security as a program, however, continues toward an inevitable fiscal cliff.]
• Restrictions aimed at particular energy-related industries, reducing our ability to provide energy from our own resources, and possibly bankrupting major companies or entire industries: coal and oil in particular. [Solyndra, etc. Blocking XL Pipeline. Refusal to allow any new drilling on public lands, or new refineries. Nevertheless, drilling on private land has boomed, mainly in North Dakota and Texas, lowering our dependence on foreign oil. Yay! Obama took credit for this, despite his continuing efforts to thwart fracking and other techniques, in a recent state-of-the-union speech.]
• Restrictions on energy use on individual Americans, which will hinder business and travel and lower standard of living for most Americans. [Attempted, but not accomplished, for the most part. But smart meters are in place for future purposes.]
• Making unlimited abortion the national law, negating state laws across the nation—just one evidence of ignoring state sovereignty. [Attempted, not accomplished thus far. Supreme Court cases related to forcing corporations to pay for abortifacients of employees, regardless of the corporation’s religious beliefs, should see rulings any day.]
• Replacing up to three Supreme Court justices with liberal judges who fail to acknowledge the supreme law of the Constitution, who willingly favor poor, minorities, and other special interest groups that currently have liberal approval. Justice no longer even attempts to be blind. In addition, other levels of judges will be filled with similarly activist judges, leaving a legacy of judicial activism for at least a generation. [Two so far. And, oddly, conservatives are in the position of hoping Ruth Bader Ginsburg holds on until a different president has the opportunity to appoint her replacement.]
• Economic problems will return to the challenges of the Carter administration: double-digit inflation, high unemployment, double-digit interest rates, stock market recession or depression, and skyrocketing federal debt. [Yes, with the exception of double-digit inflation, which has been kept artificially low by low interest rates and printing money, which is a more invisible form of inflation. The rest is beyond the intensity and length of the Carter malaise. They refer to this as a slow but steady recovery.]
• Socializing banking, energy production, and other parts of the economy that have thrived in a free market. [General Motors. Some other attempts, but mostly not fully accomplished.]
• Socializing of medicine, leading to severely lowered services and service providers, and inevitable decisions to devalue statistically high medical risks: children born with genetic disorders, elderly, people with chronic illnesses, people whose lifestyle habits don’t coincide with the government’s requirements for diet, exercise, and other practices. [Obamacare passed in March 2010, in dark of night, with nefarious manipulations, and the failures on every level continue, beyond our fears. Actual death panels cannot be fully implemented until Obamacare succeeds. Incompetence on their part gives us hope there may still be repeal. Evidence of likely outcomes of Obamacare are before our eyes in the VA scandal.]
• Revelation that the philosophies of this new president’s friends are actually his philosophies, and that is why he sought such alliances: terrorist methods for remaking America into Marxist country (Ayers and others), African racist supremacy over America and rest of the world (Wright, Pfleger and others), pro-radical Islam and anti-semitic (particularly anti-Israel) and anti-Christian policies (Kahlidi and others), organized crime and Chicago thuggery (Rezco and others). His cabinet and staff will be made up of people who, in normal times, could not be given security clearance needed to do their jobs. The president himself, under normal circumstances, could not be given security clearance. [I wrote all of this years before I read Stanley Kurtz‘s book Radical in Chief, which lays out the evidence. Dinesh D’Souza’s film 2016: Obama’s America was also informative in explaining the anti-American behavior we see in this president.]
• Without the checks and balances of an opposite view in the legislature, judiciary, or media, he will lead as one would expect of one with the most liberal record in the Senate. [We at least got the brakes put on with a Republican House in 2010. Media has stuck by him, but is showing signs lately of cracking in the face of the onslaught of lies, which they have so long been expected to repeat.]
• America will cease to be a superpower, or even leader among nations. The first step (after withdrawal from Iraq and negative consequences of that move) will be to destroy missile defense and nuclear weaponry, leaving the US vulnerable to attack from both rogue terrorist entities and rival world powers (such as China and Russia). [That’s what we’re seeing, and feel vulnerable to. And we can sense the president smiling about it off-camera.]

Using the Spherical Model, what we can be sure of is that Obama will not move us out of the southern hemisphere toward freedom, free enterprise, and civilization—because he prefers tyranny, controlled economy, and savagery.

Texas Talk--Part IV

This is the fourth and final part of my report on the Texas Republican Convention, from June 5-7. Part I and Part II were on some of the speeches. Part III and today's Part IV are on the platform debate.

If you read Part III, then you have some understanding of how the process works. It’s kind of a game against the clock. The priorities for debate are set long before the floor of 7000 or so delegates gets to work. The minority reports, dealing with the relatively simple issue of medical marijuana and then the more complicated issue of immigration, took until around 4:00 on Saturday afternoon. By this time, everyone is tired, and frustrated by the cumbersome discussion—which had included a 45-minute counted vote on some issue—but no one can go home until this thing is done. (Well, people can go home, but they give up their opportunity to participate, and their obligation to do the job of a delegate.)

So, under the pressure of impatience, then there’s the rest of the platform, up for debate, a possible 200 or so more amendments to wade through. And everyone’s thinking, “Let’s just get this over with.” That happens every time. It is a strategy, so there is as little floor debate as possible.

One amendment got put forward by a congressman, who was also a delegate. Under the heading Promoting Individual Freedom and Personal Safety, in a section called Internet Access, the plank talks mainly about an open and free internet, uncensored by government. But hidden in there is the statement “We support Net Neutrality.”

The proposed amendment was to delete that statement. “Net Neutrality” is code for a government program in which individual websites, bloggers, and others, are required to give “equal” space to competing points of view. That would mean, on this Spherical Model blog and website, I would have to “lie” about my beliefs every other post, or maybe half of every post. That’s totally unacceptable.

In debate, someone argued that the phrase didn’t mean that, that it meant simply that government had to be neutral about what is on a website. But the capitalization in the phrase implies a specific program—a program we have heard of and strongly protest. Why put the phrase in, if it is supposed to mean something else? The amendment passed—which means the phrase was removed from the platform.

No other amendments were discussed. Let me repeat that: NO other amendments were discussed. At this point, around 4:30, the “question was called,” and debate ceased. This is a tactic to ask the ultimate question: pass the platform as is, or fail to pass a platform at all.

That means that those 200 or so amendments that were filed the night before did not get discussed, because they did not get recognition on the floor. We do not even get to see what they related to (although a good number probably related to immigration, so they were already more or less handled).

There are some questionable things in the platform. These are the things the media is having a field day with. But THEY DID NOT GET DISCUSSED AT THE CONVENTION.

One of these is related to “reparative therapy” for homosexuality. The platform says: “We recognize the legitimacy and efficacy of counseling, which offers reparative therapy and treatment for those patients seeking healing and wholeness from their homosexual lifestyle. No laws or executive orders shall be imposed to limit or restrict access to this type of therapy.”

This is a freedom issue. The “gay mafia” would like to enforce—and has been pretty successful in doing so—the belief that homosexuality and its associated lifestyle (including promiscuity, sexual addiction, and failure to create committed or exclusive relationships) is normal and shall not be treated. Therapists can forfeit licensing for attempting to treat, or even suggesting that there could be treatment.* Nevertheless, data shows a fairly successful rate of behavioral help for those who seek it. This plank does nothing but state the obvious: freedom should be granted to those who seek treatment or offer it.

The plank itself is pretty mild, and supportable by data, regardless of what the media might say. But it was not discussed at the convention. Did delegates read and agree with it? I did. But I have no way of knowing whether it crossed the awareness of other delegates.

Just a humble delegate, right before the
Saturday afternoon platform debate
 

There are other things in there that are ripe for ridicule—but were not discussed. Among these is: “Full Repeal of the 17^th Amendment of the United States Constitution—Return the appointment of United Sates Senators by the state legislatures.”

This issue actually came up in a lieutenant governor debate, with Jerry Patterson accusing Dan Patrick of approving of repeal and then denying it. Dan Patrick actually said he understood the question, the history, and that it was probably a bad change made back in 1913. But that’s different from pressing for a repeal of that amendment now, 100 years later. I’m with Dan Patrick. It meant a loss of state sovereignty, and state representation. But there has been a century of gerrymandering since then, and I can’t say my trust in state legislatures (especially other state legislatures) is such that I prefer going back to their influence. It’s an academic argument that doesn’t belong in our platform. But there it is—because some group with that issue on their agenda maneuvered to get it included in the platform, expecting, accurately, that we wouldn’t have any debate on it.

There are confusing, contradictory  calls in the platform concerning constitutional conventions: “We strongly oppose any constitutional convention to rewrite the United States Constitution.” But in the very next plank, “We urge the Texas State Legislators to take the lead in calling for an Article V Amending Convention of the States, for the specific purpose of reigning in the power of the federal government.” Such a convention supposedly would not rewrite the Constitution, but would clarify that the government must abide by the Constitution. But why have a constitutional convention to say that? I know this relates in some way to a recent book by Mark Levin, which I haven't read. Nevertheless, I’m not in favor of these contradictory planks—which, again, had no debate.

The platform says, “We believe the Environmental Protection Agency should be abolished.” Maybe it should—but we did not debate that, and it’s kind of ridiculous to assume that everyone running as a Republican invariably agrees with this.

There was this little plank: “Voting Rights—We support equal suffrage for all United States citizens of voting age who are not felons. We oppose any identification of citizens by race, origin, or creed and oppose use of any such identification for purposes of creating voting districts.” That makes so much more sense to me than assuming only people of a certain ethnic, gender, or racial group can represent others of that group. Ideas, beliefs, and convictions are what matter. Gerrymandering to have “black” or “Hispanic” representatives is anathema to freedom. But, again, this was not debated.

The first page of the platform has a preamble, and a list of 11 principles. I think these are the same as in the last platform, and maybe the one before that. That single page—without the following nearly 40 pages—would be a better total platform. Less for media to dig at and ridicule. Less disagreement among otherwise united conservative party members.

It may be helpful for grassroots to have some way for concerns to bubble up and get talked about; I’m in favor of that. The rest of the platform might prove informative prior to the next state legislative session, but it’s not really a statement of our beliefs.

But a platform ought to be solid, simple, and agreed on by practically everyone in the party. That single page would serve us well. Then we could boldly speak our clear message, as all those speakers encouraged us to go forth and do.

So, my advice, when the platform becomes available online (2012’s is here), check out the first page, learn to put those conservative concepts into your own words, and let people know that’s what we really believe.

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* A good illustration is a seven-part piece in 2007 by Mike Adams, “Of Mice and Mormons,” about a family therapy master’s degree student who asked his program supervisor where to refer a client who was asking for help with unwanted same-sex attraction; for asking the question, the student was persecuted: Part I, Part II, Part III, Part IV, Part V, Part VI, Part VII.