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Archive for June, 2012

How the Supreme Court Should Have Ruled

The following is how a unanimous Supreme Court should have ruled with regard to the Affordable Care Act (Obamacare).

The issue before this court is whether the Affordable Care Act passed by Congress in 2010 is constitutional.  Specifically, does the Congress have the power to legislate medical care or medical care insurance coverage?  This Court finds that it does not.

Congress’ enumerated powers are found in Article 1 Section 8 of the U.S. Constitution.  No less than James Madison confirmed in Federalist Paper #45 that “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, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”   And in fact, nothing in Article 1 Section 8 of the Constitution can be construed to mean that Congress has any power to legislate medicine, medical care, or the insurance coverage thereof.

Now, some will claim that Congress retains powers not enumerated in the Constitution.  In the first place, why then did the authors enumerate any powers at all in the Constitution?  Secondly, how can the meaning of the Tenth Amendment be ignored?  There is no ambiguity as to the meaning of, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  James Madison in Federalist Paper 45 again, “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.”  Thus, the power to legislate health care, like marriage, education, driving licenses, and other “objects of the ordinary course of affairs” resides with state governments not the federal government in our system of governance.

But, even that explanation of enumerated powers does not satisfy those that are voracious in their hunger to do good and enact measures at the federal level of government that will take care of us from cradle to grave.  It is not the job of this Court or really any court to determine the social worthiness of legislation.  The job of the courts is to determine the law, decide constitutionality, and dispense justice by protecting rights.

So, it is wrong for political forces to use vague terms from the Constitution to further their ends.  The most often used term is the so-called Interstate Commerce Clause.  The 16 words in the clause have historically been used to allow Congress to regulate everything from speed limits on the nation’s roads to handicap ramps on sidewalks to regulating lawn mower emissions.  But the original intent of, “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes” was not to give Congress the power to regulate all things commercial.  It was to make “normal” or “regular” commerce between the states.  Under the Articles of Confederation the States had a habit of enacting impediments to free trade between them.  Alexander Hamilton alluded to this in Federalist Paper #22 and indicated his belief that a “national control” (Interstate Commerce Clause) to restrain this impulse was necessary.  Thus, in the case Gibbons v. Ogden (1824), this Court used the Interstate Commerce Clause to strike down an anti-free trade act of the legislature of New York.

Therefore, it is found by this Court that the Affordable Care Act of 2010 is hereby deemed unconstitutional.  No justification whatsoever can be found for Congress to have assumed the power under the U.S. Constitution to pass this act.  It is hereby declared null and void.

Of course, it is not surprising that the Court did not follow the Constitution in its ruling.  A long time ago, we lost all semblance of the constitutional republic the Founding Fathers gave us.  Now we are stuck with a make-it-up as you go, lawless regime.  Consequently, we are stuck with a massive federal boondoggle which will ultimately raise the costs of health care, bankrupt the county further, and move us closer to National Socialism where government funnels through legislation and regulation consumers to favored corporations.  In this case the insurance industry.

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina

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The country expects to hear from the Supreme Court this week. The Court will tell us whether we citizens, acting through our representatives, can force our fellow citizens to buy something that is both expensive and consequential. Affordable Care Act proponents point to many precedents that give government power to regulate the purchase of health insurance under the Constitution’s commerce clause. They may feel some frustration that other people don’t see the Constitution the way they do. At the end of discussions about health care, however, it is not government’s powers we are talking about. It is our powers.

No theory of government or constitutional article gives the majority in a republic power to mind a minority’s business. A 51% majority can vote a tax over objections from 49% because a tax is public business. How a citizen maintains bodily health – or neglects it – is a private decision, or at least ought to be. No citizen becomes subject to mandates from other citizens just because the people who want to impose the mandate insist the matter is no longer private. You cannot use the commerce clause to disguise or justify out and out intrusiveness.

Put another way, you cannot try to transform a private matter into a public one by insisting that we’ll all be better off if we make the matter public. By that reasoning, you could say we would all be better off if each couple or each family has only one child. We have seen that sort of public invasion of family life play out in China. How many people outside China think the Communist Party’s one-child policy is a legitimate use of social or governmental authority? Practically no one inside China thinks it is.

We cannot influence the justices’ decision at this point. Let’s hope it’s a good one: well reasoned, internally consistent, and consistent with our political traditions. The ACA is not plainly constitutional, nor is it plainly unconstitutional. Nowhere does the Constitution grant Congress power to mandate any kind of purchase by a private citizen. Nowhere does the Constitution explicitly prohibit Congress from imposing such a mandate. The Constitution’s words do not give firm guidance on this question.

To decide the case, therefore, the Court has to draw from both constitutional and extra-constitutional sources. Based on the justices’ questions and tone when the Court heard arguments on the case, many people among both Democrats and Republicans expect the Court to find the Affordable Care Act unconstitutional. Constitutional reasoning supplies a legal framework, but we know that a decision like this one relies on other types of reasoning. Perhaps more accurate would be to hope that the Court finds the Act unsustainable.

We should close with two thoughts. First, thank you to the people who brought this case before the Supreme Court. Preparation of the arguments required hard work, perseverance, and some willingness to weather criticism and scorn. However difficult the job, this legislation needs to be challenged. Thank you for seeing the job through.

Second, defeat of this law, if that is what the Court decides, could mean a revolution in our attitudes toward public and private goods. We are due for a movement toward more freedom in our country. The Tea Party, many in the Occupy movement, political independents, liberal minded thinkers among Republicans and Democrats: all would like to see the national government operate under effective constraints that serve to limit its powers over matters we have long thought private. This desire comes from recognition that without constraints, government’s instrusiveness forces people into modes of life that are less and less free. We ought to celebrate if the Supreme Court finds against the ACA, but we should also make the decision something more than a one-off victory.

Momentum in politics, as in warfare or in any kind of competition, does matter. Let us combine the country’s vigorous opposition to the Affordable Care Act with other grievances about other intrusions, to make a robust force that strikes down freedom-limiting regulation. President Obama, before his election, repeated three words to rally his followers: “Yes we can.” Let’s encourage ourselves and all who want to defeat Obama’s methods and vision with a similar thought. If we plan together and collaborate effectively, we can push forward with other projects, just as soldiers roll forward in a body after they first breach a key battlement.

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America’s Lost Decades

Not too long ago an industrial giant experienced one of the greatest economic booms in its history.  Thanks to easy credit and low interest rates investors in that country ran up astronomical debts and used those proceeds to bid up the price of real property and the stock market.  With home values and pensions way up in value, folks were feeling very secure about their economic futures. For the average investor in that country it seemed like the good times would never end.

Then the bottom fell out.  Realizing the boom was becoming unsustainable, the country’s central bank raised interest rates.  Suddenly, the enormous debt built up during the boom years went bad.  Banks began to fail and the government responded by bailing out the “too big to fail” financial institutions in order to avert a total collapse of the economy.

Anyone who remembers the 1980s and early 1990s knows the country in question is Japan.  Beyond bailing out the “too big to fail” banks, the Japanese government also attempted to use fiscal stimulus and the Japanese central bank attempted to use low interest rates to produce an economic recovery.  The result has been two decades of little or no economic growth and an unemployment rate that has hovered around two times what it was in the 1980s.  This period in Japanese history has come to be known as Japan’s Lost Decades

Now, you may have guessed that the country being described in the first two paragraphs above was the United States.  Obviously, you would have also been correct.  During the 2000s, we experienced our own phony, central bank induced economic boom.  Easy credit and low interest rates were used by many Americans to amass huge debt while bidding up the price of housing and the stock market.  New found wealth through asset appreciation gave many a false impression that they were set for life and the good times would never end.

Like Japan, the bubble burst when interest rates rose and a heck of a lot of homeowners were holding mortgages that they could no longer afford.  Banks failed and were bailed out by the federal government.  Stimulus packages were passed and interest rates lowered to produce economic recovery.

If emulating Japan is not bad enough, the really scary thing is the Federal Reserve’s Survey of Consumer Finances report that was released earlier this month.  According to the report, the median net worth of American families dropped by 39 percent between 2007 and 2010.  That means the typical American family is roughly worth what it was worth in 1992 – 18 years without any economic advancement!

And it gets worse.  The report indicated that the median net worth of the middle class had the biggest drop – owing mostly to declining property values.  At the same time, the median net worth of America’s wealthiest families rose slightly.

So what does all this tell us?  For one thing, we are in for a long period of sluggish economic performance and above average unemployment because the powers that be in America responded to the bust of 2008 in the same fashion the leaders of Japan handled their downturn in the early 1990s.  Propping up failed financial institutions, stimulus spending, and below market interest rates did not produce recovery in Japan.  In fact, 20 years later, the Japanese economy still has not recovered.  Likewise, the same policy initiatives have not produced recovery in America some four years out from the crisis and if economic policy in the U.S. doesn’t change soon, economic historians may be calling the next twenty years America’s Lost Decades.

Secondly, the wealth that was produced in the last 20 years was phony.  It was built on artificially cheap and widely available credit. This in turn produced false property values and huge consumer debt.  When the crisis hit it the floor under the economy was apparently a long way down – at least 18 years down according to the Fed’s report.

Lastly, what can be learned from our most recent economic experience is that Washington and Wall Street have hoodwinked the country into believing prosperity is a result of everyone spending beyond their means.  In reality, true prosperity comes from hard work, thrift, and saving.  It comes from the formation of pools of capital made available to business to borrow in order to open or expand operations.  Simply having the central bank print more money does not produce wealth.  In fact, the Fed’s monetization of the government’s debt has done more to destroy the American middle class than any other factor.  Devaluing the dollar diminishes disposable income and erodes savings.  Conversely, the price inflation produced by the Fed enhances the assets and investments of the wealthy.

At the end of the day, there are significant similarities between Japan’s financial crisis in the early 1990s and America’s in 2008.  Due to its government’s policies after the crisis, Japan has lost two decades of economic growth.  According to the Fed’s Survey of Consumer Finances report, Americans have already lost two decades of economic gain.  Given that Uncle Sam’s response to the financial crisis of 2008 mirrored Japan’s in the 1990s, two more are potentially on the horizon.  At that point, it would almost be a lost half century.

Article first published as America’s Lost Decades on Blogcritics.

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina.

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One year, five months and three days from today we’ll observe the fiftieth anniversary of Jack Kennedy’s death. He died in a Lincoln Continental on Elm Street in Dallas. The time was 12:30 pm on November 22, 1963. An assassin blew his brains out.

Let’s be accurate: clinically speaking, JFK died in Parkland hospital about half an hour after he was shot. For practical purposes, he died in the car. The body takes a little while to shut down. He arrived at the hospital in time for the doctors at Parkland to pronounce him dead after he arrived.

It’ll be interesting to see what books about the assassination come out during the next year and a half. We have already seen a lot of good research published during the last ten years. We all hope the quality of upcoming books is equally good.

A recent book I’ve been reading on my Kindle is titled The Girl on the Stairs: My Search for A Missing Witness To The Assassination of John F. Kennedy, by Barry Ernest. This book deserves a review of its own, but I want to mention it here to introduce something else I’ve been thinking about.

If you pick up The Girl on the Stairs, you’ll see quickly how much time Ernest spends evaluating the Warren report, both in his research and in his writing. He cares about his subject, and his treatment of the Warren report is as careful as any I’ve seen. He wants to understand why the Warren Commission wrote it the way it did, rather than some other way. The missing witness, Victoria Adams, is central to Ernest’s story, but the Commission’s report dominates his analysis even more.

If you pick up a couple of other books published during the last several years, Brothers by David Talbot and JFK and the Unspeakable by James Douglass, you’ll find references to the Warren report much more sparse. These authors take up the assassination in a different way. They are not as concerned with forensic evidence as is Barry Ernest.

The forensic evidence, so poorly analyzed by the Warren Commission, is an important part of the assassination story, but it isn’t the only part. It’s also not the most important. The most important evidence and the most important analysis, in any criminal case, is to tell a story that establishes motives for the murder. Douglass in particular takes care to do that. Forensic evidence can tell you what happened. It cannot tell you why it happened.

So what have I been thinking about? I’ve been thinking about motives for the 9/11 attacks. As we evaluate the evidence related to that crime, we want to analyze it so as to tell a story about why it happened. We want to know why all the people involved with the crime carried it out. Based on evidentiary analysis we have to date, we don’t know that.

I hope we can take a longer look at this problem in future posts.

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Actions Speak Louder than Words

When my wife and I began dating about 14 years ago, it didn’t take long for me to realize that she was the one for me.  Being the affectionate type, I had no trouble verbalizing my feelings to her.  She rarely reciprocated and this caused tension in our relationship.  She kept telling me that she came from a background where saying “I love you” did not come naturally.  Instead her love for and commitment to me could be discerned from how she treated me on a daily basis.  In other words, her actions spoke louder than any words.

And so it is with Kentucky Senator Rand Paul.  Many members of the Freedom Movement, better known as rabid followers of Republican Presidential Candidate Congressman Ron Paul, were stunned and then subsequently devastated when Rand announced on the Sean Hannity Show that he was “happy” to endorse Mitt Romney for president of the United States.  On the internet, their devastation was expressed in blogs, comments boards, and facebook postings that oozed venom toward Rand.  On the surface, Rand’s misguided support for the neo-con, big government, bankster puppet Mitt Romney appeared to be a treasonous act to those that have given so much to the cause of liberty and the Ron Paul for President Campaign.  But, as it was in my own case, this situation also needs to be analyzed from an actions speak louder than words standpoint.

There is no question that Rand Paul did endorse Mitt Romney for president which could be construed as a betrayal of everything his father has fought for these last thirty-five years.  But let’s not forget how the endorsement was delivered.  It was not done on the steps of the Capitol or even with Romney at a campaign rally somewhere.  It was done way more low key than that on the Sean Hannity Show on Fox.  This venue was chosen no doubt to appeal to traditional Republicans who have been the people most hostile to his father’s movement and whose support in the future may be beneficial to both Rand and the Liberty Movement.  In his endorsement, he spoke first about how his father was still his first choice for president.  When asked about what he had in common with Romney, instead of fudging the truth and saying they agreed on economic and foreign policy, Rand talked about their fathers and shared family values.

To me, this was hardly an endorsement of Romney.  It was more of an obligatory political move meant to benefit Rand way more than Romney.  After all, most if not all of Rand and Ron Paul supporters will never vote for Romney.  Many Republican officials only care about winning elections.  Even Rand’s hollow support for Romney makes him look like a team player which could benefit him in a future presidential run.

But what really matters most are Rand’s positions on the issues.  With the exception of his support for sanctions on Iran, Senator Paul’s record on the issues most important to the Liberty Movement is sterling.  He opposes the Patriot Act and was one of only two Republicans to vote against renewal of some of its provisions. He favors abolition of the Federal Reserve and is on record as endorsing H.R. 120, the Federal Reserve Transparency Act.  He has proposed a plan that would cut $500 billion from federal spending in one year and agrees with his father that the U.S. can only go to war with a declaration from Congress.  He opposes campaign spending limits, subsidies to industry, and the TSA.

At the end of the day, Rand Paul’s feeble endorsement of Mitt Romney is completely overshadowed by his pro-liberty voting record and stance on many of the issues important to libertarians.  Let’s not forget that in his career Ron Paul actually voted for John Boehner, Dennis Hastert, and Newt Gingrich for Speaker of the House.  He did it not because he had anything of substance in common with them; he did it to try to work with his party’s leaders in an attempt to further his own agenda.  No one has ever accused Ron Paul of being a sell-out.  And that is because actions do speak louder than words.

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Washington has become a bottomless source of so-called narratives that pundits parrot, pad, peddle and promote in order to persuade us to see the world the way they see it. You can categorize journalists by which narratives they choose to pick up. Most importantly, it helps you analyze the question, does this writer think for himself, or not? If the writer has no detachment from the latest narrative, at least be sure you have some detachment. You will never think clearly if you let yourself be drawn into endless sniping.

Remember, sniping is not harmless. It aims to kill your enemy. When we talk about partisan sniping in Washington, we’re talking serious politics. Snipers shoot to kill.

So what narrative do I have in mind? The short version is: blame the Republicans. They’re the obstructionists. They’re the reason Washington can’t get anything done.

The story line is more complicated than that, and if I had the space I could summarize it a bit more. But you’ve seen it already. People are writing books about it now. One of the latest, by Norman Ornstein and Thomas Mann no less, is titled It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism. When the book came out a few weeks ago, a lot of people noted that these respected scholars – always balanced! – blamed the Republicans for Washington dysfunction more than they blamed the Democrats. Take note.

Now we can say that the Republicans in Congress have indeed obstructed the Democrats’ plans and proposals. What the narrative doesn’t include is the reminder that voters sent those Republicans to Congress is 2010 to do exactly that. A lot of voters perceived in 2009 and 2010 what Obama, Reid and Pelosi wanted to do, and in November 2010 they responded with a loud NO! WE DON’T WANT THAT!

That’s democracy. You can’t charge Republicans in Congress with obstructionism when they accomplish exactly what their consituents sent them to Washington to accomplish. Certainly the citizens who voted Republican in 2010 wanted their representatives to enact radical reductions in taxes and regulatory constraints, changes that have not occurred, but at the very least those voters wanted the new Republican majority to stop the Democrats. At least they have done that.

No one doubts that the voters themselves are divided. They disagree about a lot of issues. The so-called gridlock in Washington reflects those divisions. To say though that the congressional Republicans are obstructionist because they prevent Democrats in the Senate and executive branch from getting what they want, is to privilege the privilege the party that holds the White House and the Senate. Why would we privilege the Democrats in this case, or for that matter the institutions they hold? We all say that the House is the most democratic institution in our republican constitution. Why should the party that holds the most representative institution be charged with obstructionism?

If the Republicans take the White House in 2012, we’ll have to see if the Democrats in the House and Senate become the latest obstructionists. The Republicans may turn the charge around, or they may continue to ignore the charge when Democrats in Congress charge the Romney White House with obstructionism. You can see where this analysis is headed. When both government and citizenry are divided, a charge of obstructionism becomes insubstantial and baseless. It’s a talking point and nothing more.

The Democrats and sympathetic analysts have repeated this particular talking point so often, however, that it starts to look like dogma. Like other false or misdirected arguments, this one about who is obstructionist – and who suffers from obstructionism – may go away in time. If it does go away, the Republicans will have chosen correctly in ignoring the charge and the developing narrative. The Republicans in Congress, and the voters who sent them there, do in fact have a vision for the country that differs from the Democrats’ vision. They don’t want charges of obstructionism to distract them from that vision.

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I’ve written on the subject of torture so many times that I start to think I should lay off. The subject still has unequaled power to make a citizen indignant. I know our government has done a lot of bad things during our country’s history. Treatment of Native Americans – which amounted to ethnic cleansing in its intent and its effects – stands out as a particularly vicious program of government wrongdoing. Still, that occurred well before we were born: cruelty toward innocent people right now – by people we pay to serve us – makes one especially angry.

So how does the subject of wanton cruelty come up right now? You read that the International Court of Justice in the Hague sentenced Charles Taylor to fifty years in prison for acts of cruelty he sponsored during Sierra Leone’s civil conflict a couple of decades ago. According to the charges, Taylor paid people who mutilated and tortured their victims. The judge commented that never before had a head of state been held responsible for this kind of activity, convicted for torture committed by others. The prosecutor said of the conviction that it was a good day. 

The same day I read news of Charles Taylor, I read an article about prisons in Afghanistan. The guards, police, and other Afghan security forces routinely torture prisoners there. They whip prisoners with chains and rubber hoses, they crush their genitals, they beat them, electrocute them, and hang them from their wrists. This cruelty did not stop when George W. Bush left office, nor did it stop when President Obama claimed it stopped. It continued because we paid for it, we sponsored it, we sanctioned it. We write the checks that keep the Afghan security forces in business. However directly or indirectly, we employ them.

That’s exactly the situation that existed between Charles Taylor and the various thugs, militiamen, guerrillas, strongmen, commanders, and miscellaneous criminals who received money from his corrupt coffers. If you compare the layers of insulation, deniability, and responsibility between Taylor and his accomplices with the layers between Obama and his Afghan accomplices, you won’t find that much difference. One difference is that Sierra Leone sits closer to Liberia than Afghanistan does to Washington, DC. Geographical distance probably makes a psychological difference for the paymasters. For the victims, though, cruelty is cruelty, and it doesn’t matter much whether the funds for torture originate next door or from the other side of the world. The pain is the same either way.

Another difference is that President Obama doesn’t have enemies who can capture him and send him to the International Court of Justice. Charles Taylor lived in the sort of environment that former heads of state have to fear: without power, they are also without protection. I suppose he was lucky his captors did not turn him over to a group inclined to treat him the way he treated others.

The biggest difference of all between the United States government and the Liberian dictator is that the United States is a superpower. Charles Taylor said during his trial that he was head of a respected state, not of Monrovia or someplace like that. The fact is, Liberia does not rank high in the international pecking order, and that made him subject to trial for sponsorship of cruelty in his neighborhood. You will have to wait a long time to see a former head of state from the United States brought up on charges related to acts of cruelty sponsored by the U. S. We are too powerful a country, and the top dog can do what it likes.

Charles Taylor is not a good man. You would not promote him as an example for other leaders or heads of state. For members of our government to preach that he received a just sentence, however, adds hypocrisy to torture on their own rap sheet. We have created so many ways to torture people – in secret, in client states, in prisons, in black sites, during interrogations where “enhanced techniques” don’t count. We act so satisfied when Charles Taylor goes to prison for fifty years. Let’s consider what we deserve for what we’ve done.

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