Monthly Archives: April 2018

  • Americans vs America – To Keep and Bear Arms Across Time – pt4

    America, and Americans – what do they have left in common? If that strikes you as an odd question to ask, you probably haven’t taken a public position (as I’ve been doing in these recent posts) on something like the the 1st, or 2nd Amendments to our Constitution. Do that, and I think you’ll quickly notice, as in these examples below, how divided we now are by the very ideas that once defined us:

    • On our college campus’s, opposing views are increasingly being met not with the force of persuasion, but the persuasion of force:

      “…A controversial conservative commentator was escorted by police from California State University, Los Angeles as angry demonstrators protested his presence on campus Thursday afternoon….”

    • in the state of California, a State Senator has proposed infringing upon the freedom of speech, by proposing a bill, SB1424, to have the state approve which news is fit to print:

      “…This bill would require any person who operates a social media, as defined, Internet Web site with a physical presence in California to develop a strategic plan to verify news stories shared on its Web site. The bill would require the plan to include, among other things, a plan to mitigate the spread of false information through news stories, the utilization of fact-checkers to verify news stories, providing outreach to social media users, and placing a warning on a news story containing false information….”

    • Dana Loesch is a clear example of how exercising those rights that are protected under the 1st Amendment, in support of those protected by the 2nd Amendment, can result in not only a barrage of tweets and shouts for you to be raped and murdered (non-violently, of course), but it can also leave you in need of physical protection to escape those who’d physically like to harm you:

      “…”I had to have a security detail to get out,” she said of the Sunrise, Fla. event. “I wouldn’t be able to exit that if I didn’t have a private security detail. There were people rushing the stage and screaming burn her. And I came there to talk solutions and I still am going to continue that conversation on solutions as the NRA has been doing since before I was alive.”…”

    • Even the idea of Americans being ‘United’ is dividing us, as this ‘think piece’ that was endorsed by the CEO of Twitter as a “Great Read“, which yearns for one party rule, the end of the GOP, while promoting California as the role model for a new ‘peaceful’ Civil War to banish ‘The Right‘ from power, and from ‘respectable’ society. If you doubt that, just take note that part 4 of this ‘great read’, is subtitled:

      “Why there’s no bipartisan way forward at this juncture in our history — one side must win”

    These are not simply emotional outbursts that’ve been stirred up in public gatherings, they are the results of persistent, considered intellectual positions that have been percolating up from academia, and have been spilling out into our mainstream conversations for decades. Some recent examples can be found in last year’s debates over whether it was ok to “Punch a Nazi” (with the implication being that violence as political speech is ok, if you happen to think of the other side as being a Nazi, or in sympathy with them), or the New York Times’ opinion piece calling to “Repeal the 2nd Amendment“, and of course we recently had a retired Supreme Court Justice writing an op-ed in that same ‘newspaper of record’, calling to Repeal the 2nd Amendment, on the basis of public opinion – or at least that part of the public that agrees with him – rather than on the basis of those American ideals which the Constitution was written to preserve, protect and defend.

    As I say, it’s easy to see what divides us today – but how easy is it for Americans of today to see what it was that once united us, and how?

    Back at the time of our founding, America was 13 colonies of people who then, as now, held often radically different views and interests, and were prone to dislike and distrust the people in those ‘other’ colonies. How were they able to unite? Today, more than ever, that’s a question worth re-asking.

    Ideas, not positions, united us
    When Thomas Jefferson took up the task of writing the Declaration of Independence, he intended it to express ideas that were common to the American mind,

    “…Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c….”

    , those ‘harmonizing sentiments of the day‘, which were formed from the ideas of ‘Aristotle, Cicero, Locke, Sidney, &c.‘ were the substance with which we were able to form ourselves from – not by compulsory agreements upon popular positions not shared by all, but through familiarity with those concepts which enabled a thorough discussion of such disparate positions, and made reasonable disagreements over them, possible. If you understand that, then I don’t think that it’s too much of a stretch to say that America sprang from the 1st and 2nd Amendments – not the amendments themselves of course, but from the ideas which animated them.

    Bookending Liberty
    Those same ideas and their sources are what enabled the formation of ‘US’, and they bookended America’s opening act, first by animating the American Revolution through Lexington, Concord, and the Declaration of Independence, and then two decades later by securing America from the powerful federal government that their fellow Americans’ were creating, by insisting that their new constitution be amended with a Bill of Rights, formed from those same ‘harmonizing sentiments of the day’.

    And why did they insist upon a Bill of Rights as a condition for ratifying the new Constitution? For many of the same reasons that they insisted upon having a Constitution. Once the revolutionary war had been won, the aspirations of the newly minted states became tempered with the reality that they were on a fast track to warring with each other, over issues of currency, fishing rights, trade, slavery and more, and they soon realized that if they were to remain good neighbors, they would need the benefit of stronger walls than any one state would be able to provide for themselves alone.

    Our Constitution, as originally proposed by those who were seen as being among the very best amongst us – ‘an assembly of demigods‘ is how Thomas Jefferson described the roll-call of the Framers in the Constitutional Convention, to John Adams – was written to define a structure of three governmental branches jealously sharing checks and balances upon each other’s powers in govt, in order to limit that government’s power and preserve our liberty for as long as possible. But because We The People didn’t fully trust the good intentions and best ideas of those who desired to protect us, they, in what might be called the ‘good walls make good neighbors‘ sentiment, required that a Bill of Rights be agreed to be amended to the proposed Constitution, for it to be ratified, erecting legislative barriers to protect those ideas which were the one thing that all Americans had in common with each other. Not least of those concerns, was that they felt the need to bar their new federal government from infringing upon the individual’s right to speak, publish, and worship as they might choose (see the 1st Amendment), and to explicitly protect the right to defend you and yours from the unjust assault of others, be they person, mob, tyrant… or even the well intentioned policies of their own government (see the 2nd Amendment).

    The important part of that ‘book-ending’ to keep in mind, and to re-emphasize today, is that we used those same ideas which we formed our governments from, to secure us from the best intentions of the best amongst us, with whom we would have to govern ourselves with.

    Also worth repeating, is that we were able to become the United States of America, by the promise of:

    • ensuring that individual rights would be respected, defended, and upheld by a representative government;
    • that its powers would be defined and limited by a written constitution;
    • that governing themselves according to a Rule of Law whose purpose it was to see to it that the rights of all would be secured, was the only thing worthy of the ‘consent of the governed’;

    , that is the essence of what America is, having the individual right to live in liberty with each other, without fear of one power or another interfering with or limiting our lives – from either the well, or the ill, intentioned hands, of those in power – for as long as possible.

    Still with all of that, our Founders, as familiar with history as they were, weren’t overly optimistic about how long their legislative wall could stand in defense of our Liberty. Most of them, with the republics of Rome, Venice and others in mind, gave it 200 years, at the most, until a ‘debased posterity‘ leveled those walls to the demagogic ground. And so today, some 230 years later, I suppose we should be pleased that we (being that debased posterity they spoke of) are still doing better than they expected.

    But just how pleased should we be… and for how long can we hope to remain it?

    Natural Faultlines
    Those long expected cracks in our walls have become especially visible in recent decades, as so many natural born Americans have been raised without an understanding of what America is, that in their ignorance of the ideas that formed us, their impassioned actions naturally serve to widen, deepen, and multiply those structural cracks, and at the same time serve to self identify themselves with how little they have in common with America.

    It took well over two thousand years of development for humanity in general, and the West in particular, to reach the point of realizing the American ideal – and it has taken us just over two hundred years for us to come as close as we are today to losing it. This historical tidbit is something that would have been far less surprising to them back then, than it is to us today, and the reason why, the reason why the Founders bet we wouldn’t last 200 years, is that real progress is so hard to achieve and maintain, while a gradual regress is so easy and natural to slip into.

    The natural inclination of mankind is to force their fellows to conform to the group. It is only natural that people bereft of the very uncommon – one might even say exceptional – ideals of America, should revert to the naturally more comforting habits of tribalism, brutishness and savagery. The later should not be remarkable or surprising, because only the former is, and it takes nothing more than a people who are ignorant of those ideals, to extinguish that historically exceptional surprise. But for that to make any real sense, you also have to face up to the fact that people ignorant of what our Founder’s generation understood, are no less smart than they were, or we are, today. Worse still, that people’s fearsome ‘smartness’ is easily turned to the purpose of rationalizing and justifying, every ‘smart’ idea that pops into their heads – you need look no further than California (or 1930’s Germany for that matter (and yes, I definitely did go there)) for examples of that.

    While our Declaration of Independence expressed our founding ideals better than most anything else, as being the meaning and spirit of America, and our our motto ‘E Pluribus Unum‘ (Out of Many, One), is the ethos by which we (over the course of four score and seven years… or so…) managed to become one nation, from many peoples, but we were able to only by way of recognizing the universality of Individual Rights, and the necessity of protecting them by a constitutionally based Rule of Law, from being abused by our laws.

    Given all of that, it’s downright tragi-comic that today our Founding Documents now seem to serve mostly to define which side of our Founders legislative wall of liberty, that an American today is standing upon: clamoring either to tear it down, or to prop it up. It’s by that choice, whether it is made in ignorance of, or opposition to, those ideas which America was formed from, that those living in America today, identify themselves as being either Americans in fact (or at least in spirit), or Americans in name only. This probably should come as no surprise, divide and conquer being the effective strategy it always has been, and what people passionately believe, in, and against, are wonderfully effective instruments of division and destruction, but even so, it is jarring to realize that it is our understanding of our Individual Rights which once served to unite us, that are now at the center of what divides so many Americans, from America.

    What concerns me today, is that our divisions have just about reached the rhetorical limits of being confined to rhetoric only. The ‘think piece’ that I noted at the top, which was endorsed by the CEO of Twitter as being a “Great Read“, helps make this point for reasons that are very different from what its authors intended. For instance, not only do they openly yearn for the end of the GOP, for one party rule, and propose California as a political role model for the nation to follow (!), they also propose waging a new ‘peaceful’ Civil War to banish ‘The Right’ from power and from respectable society. At the same time, they are urging that such a revolution should be brought about, ‘peacefully’, but without ‘their people’ being stupid enough to get involved in discussions with, or cooperation with, ‘the other side’,

    “…The next time you call for bipartisan cooperation in America and long for Republicans and Democrats to work side by side, stop it. Remember the great lesson of California, the harbinger of America’s political future, and realize that today such bipartisan cooperation simply can’t get done….”

    They justify this position on account of their superior intelligence and reasonability, which seems to be neatly expressed in their tone-deaf evaluation of the ‘other side’,

    “…The Republican Party was trapped in the brain-dead orthodoxies of an ideology stuck in the past. The party was controlled by zealous activists and corrupt special interests who refused to face up to the reality of the new century….”

    In case you missed it there, that previous passage says exactly nothing of meaning; its conceptual content is zero. But it states a position that you can easily be for or against, on the basis of ideologically stoked passions alone. Not for convincing arguments, of course, but only because you feel it is ‘necessary’. Continuing in that vein,

    “…Let’s just say what needs to be said: The Republican Party over the past 40 years has maneuvered itself into a position where they are the bad guys on the wrong side of history. For a long time, they have been able to hide this fact through a sophisticated series of veils, invoking cultural voodoo that fools a large enough number of Americans to stay in the game. …”

    , and given that fair minded evaluation, they contend that,

    “…At some point, one side or the other must win — and win big. The side resisting change, usually the one most rooted in the past systems and incumbent interests, must be thoroughly defeated — not just for a political cycle or two, but for a generation or two. That gives the winning party or movement the time and space needed to really build up the next system without always fighting rear-guard actions and getting drawn backwards. The losing party or movement will need that same time to go through a fundamental rethink, a long-term renewal that eventually will enable them to play a new game….”

    They foresee this victory of their side, over that of ‘the other’s‘, is to come about not because of some ideas that all may listen to and understand, but because it is a position that they want, and want badly (Note: Aristotle defined a ‘child’ as being those who are governed not by reasoning, but by their passions and desires). But don’t despair, dear reader, there’s no need for concern, you see, because they believe that this new ‘Civil War’ which they are calling for, can be won peacefully:

    “…One side or the other must win. This is a civil war that can be won without firing a shot. But it is a fundamental conflict between two worldviews that must be resolved in short order….”

    Ok, swell. One question: How?! They expect that these forward thinking revolutionary new ideal positions of theirs, which brook no room for, or possibility of, reasonable political discussions or cooperation with ‘the other side’, is somehow going to enable them to defeat that ‘other side’, in a revolution that can be fought and won without firing a shot.

    Again: How?!

    Clearly not by winning an argument which they’ve stated their refusal to engage in, so it won’t be won by convincing that other side of the basis of their superior ideas and policies… so how?

    Can they really be entirely ignorant of the fact that refusing to discuss what you disagree with others about, while characterizing them as brain dead, hateful, racist idiots, means eliminating even the possibility of a chance for a ‘peaceful’process’?! Not only that, but they are explicitly rejecting an argument on conceptual grounds, in favor of pragmatic, utilitarian grounds of ‘More’ over ‘Moral’ reasons. They even characterize our very bloody Civil War, as being less an issue of slavery versus liberty, than one of competing ‘economic models’ of industry vs agrarianism, and that,

    “… They tried to somehow coexist from the time of the founding era, but by the middle of the 19th century, something had to give. One side or the other had to win.”

    , and so, having evaded the Democrat party’s historic association with racism, slavery and a denial of individual rights, and having positioned themselves as the party of economic prosperity via California’s Silicon Valley, guess what: the ‘other side’ is all about bad economic models, you see, because:

    “The Republican Party is the party of climate change denial.”

    Worse, this ‘economic motivation’ passage isn’t simply a Pro-Regressive Democrat talking point, it is also a favorite of a great many so-called ‘libertarians’, who routinely and enthusiastically endorse the Confederacy as ‘liberty minded’ states, and Lincoln as a totalitarian despot. While such views are incompatible with the American ideal of Individual Rights, there are many political philosophies (they are in fact legion) which support this view, and require only that you adopt the Utilitarian and Pragmatic view that reality is ultimately unknowable, and that Individual Rights are ‘nonsense upon stilts‘. If you accept that, and most colleges and universities today will cheerfully grant you a diploma if you do, then you will be able to, and be required even, to evade of questions of Reality and of Right and Wrong, in favor of an economic cost/benefit calculus, which considers only matters of quantifying more and less material benefits. Not coincidentally, issues of Rights and Principles and Reason, cannot even be discussed, absent a serious regard for Reality and an ethics of Right and Wrong – without that, such ideas can only be nonsense.

    IOW, in the view of the ‘Great Read’, having successfully eliminated questions of Right and Wrong from consideration, they can assert the greater utility of their ‘California Future’, and seek to impose it upon us all, and because they say that they want to do so ‘peacefully’, they easily presume that it can be done… if only by means of their superior word magic – perhaps by invoking the positions of both Hitler and Chamberlain to achieve ‘Peaceful revolution in our time!‘?!

    How can they imagine this ‘peaceful revolution‘ of theirs, is in any way a possible one? The answer to that is, that absent understanding, the impossible seems easy… until it’s too late. And given that, truly, how could anyone expect to achieve anything but the darkest past, as their inevitable future?

    These Leftist’s ideals have maxed out the room to speak without acting today, and those amongst us who’ve left no more verbal wiggle room, are not only calling for eliminating the desire for cooperation, but are actively moving to eliminate even the language of individual rights and principles that would make such a thing as a ‘peaceful revolution‘ possible.

    The painful fact is that those ‘harmonizing sentiments‘ which Jefferson so confidently presumed his American audience to be familiar with, through their familiarity with the elementary works of ‘Aristotle, Cicero, Locke, Sidney, &c‘, those were the very works and ideas which have been deliberately ‘educated’ out of most Americans, over the course of more than a century of pro-regressive efforts at ‘educational reform’. American ‘educational reform’ has served to reform America, by ‘dissappearing’ those harmonizing sentiments, and the means to them, along with the unique exceptional leap of progress that the ideal of America truly represents.

    What issues cannot be decided by Reason, will be determined by force
    We’ve just about reached the point where ‘talking smack’ can go no further, without actually physically smacking, and then being smacked back, in turn. The Pro-Regressives, Left and Right, have word-danced themselves as far down the anti-American path as it is possible to go, without actually acting to put their anti-American ideals into action – I can see no further room for them to move verbally, while being anti-American in spirit only, and not in actual fact. Should the Pro-Regressives succeed in removing either the 2nd or 1st Amendment though, they will cease to be mere political parties expressing a difference of opinion on how to achieve the same ideals, but will have become an occupying power in fact, at war with those it has naturally separated themselves from, and moved to the opposite side of.

    Sorry, but for one side or the other to ‘win’, by eliminating not only the competition, but the 1st & 2nd Amendments, there will be shots fired and that war will not be civil.

    I can hear it: ‘Shots fired?! At ‘war’?! Really?!‘ It deeply pains me to say it, but ‘Yes, really‘. Although I entirely disagree with the reasoning of the Twitter CEO’s ‘Great Read, the conclusions they’ve come to, leave no room for avoiding the war they seek. It requires only a general familiarity with history, to arrive at the appalling understanding that those who scoff most at the possibility of war, are the very ones who blindly usher it onto the world’s stage. Time and time again, it is the refusal to see what should divide us, especially when being misrepresented as the means to achieve ‘peace’ (hello Neville Chamberlain), it’s then when the real issues are ignored or brushed away through appeals to tolerance, that some of history’s darkest, and most ironic jokes are delivered, and their punchlines are often war itself.

    This passage from John Locke’s ‘The Second Treatise of Government‘ is one of those foundational ‘harmonizing sentiments‘ which Jefferson spoke of as being an obvious ‘expression of the American mind‘, and it is about what being in a state of war was commonly understood to be, and whether or not you care to admit it, or try to tolerantly avoid it, he is describing not the causes of war, but those signs by which you can know that a state of war already exists, and they bear a frightening resemblance to what the ‘Great Read’ is advocating:

    CHAP. III. Of the State of War.
    §. 16.
    THE state of war is a state of enmity and destruction: and therefore declaring by word or action, not [207] a passionate and hasty, but a sedate settled design upon another man’s life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other’s power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just, I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the common-law of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power.
    §. 17.


    And hence it is, that he who attempts to get another man into his absolute power, does thereby put himself into a state of war with him; it being to be understood as a declaration of a design upon his life: for I have reason to conclude, that he who would get me into his power without my consent, would use me as he pleased when he had got me there, and destroy me too [208] when he had a fancy to it; for no body can desire to have me in his absolute power, unless it be to compel me by force to that which is against the right of my freedom, i. e. make me a slave. To be free from such force is the only security of my preservation; and reason bids me look on him, as an enemy to my preservation, who would take away that freedom which is the fence to it; so that he who makes an attempt to enslave me, thereby puts himself into a state of war with me. He that, in the state of nature, would take away the freedom that belongs to any one in that state, must necessarily be supposed to have a design to take away every thing else, that freedom being the foundation of all the rest; as he that, in the state of society, would take away the freedom belonging to those of that society or common-wealth, must be supposed to design to take away from them every thing else, and so be looked on as in a state of war.
    §. 18.
    This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would [209] not, when he had me in his power, take away every thing else. And therefore it is lawful for me to treat him as one who has put himself into a state of war with me, i. e. kill him if I can; for to that hazard does he justly expose himself, whoever introduces a state of war, and is aggressor in it.”

    I am both heartened, and concerned, that a member of the much maligned Millennial Generation, included a significant quotation from this, and other writings from our founding era, in this Daily Wire article, illustrating that even though the assumptions made about groups of Americans might be foolish, the divisions between us are very real.

    The act of turning a blind eye to what enabled our 13 Colonies to become united as states, is the means of transforming a people once united as one, into a fractious many. The passive aggressive screed espoused in the Twitter CEO’s ‘Great Read’, is intent upon pitting Americans against the idea of America, dividing one ‘Right!’, from another, and if we do not rediscover those ‘harmonizing sentiments’ which enabled our original colonies to unite, then it stands to reason that our differences will force us apart, and that won’t be done peacefully – at least not while denying the need for Americans to reason with the ‘Other Side’ of America. Which, by the way, is the reason we have the Right to Keep and Bear Arms, and why we will fight to retain it, for all time.

  • Gorsuch vs Thomas: An object lesson in Constitutionally rooted disagreement
    Wow. USA Today ran the headline of this SCOTUS decision on immigration law as “Neil Gorsuch sides with liberals to tip decision to immigrant in Supreme Court deportation case“, which seems like a selective bit of spin, to say the least. But it did get my attention, and so I began, and am still reading, the opposing opinions  in “Sessions v. Dimaya” of Justice Gorsuch (for, beginning on pdf pg 31) and Justice Thomas (against, beginning on pdf pg 65), and I tell you what:This is good reading!

    As I began reading Gorsuch’s opinion, I was nodding at nearly every point, with a sense of “How can you argue against that?“.

    And then as I read Thomas’s opinion, he resoundingly struck back at each of those points – not so much by arguing against those points, but by going for a wider and deeper context which leaves them seeming to be less than decisive as relevant points, and I find myself thinking “ooOoohhh. Ah. I guess that’s how… hmmm…“.

    At this point I’m not so sure of my take on it yet, and though I do have the sense that Thomas is going for the deeper substance, but I will have to beg off of agreeing or disagreeing with either one until I can take some real time with comparing one’s point to the other’s counterpoint, but I tell you what – if you want to see what it means to argue a point of law where both sides are respectful of the Constitution, you could do a lot worse than starting with these two.

    What’s more, I’m betting that a large number of coming Supreme Court decisions are going to hinge upon the balancing points of these two Justices’ arguments.

    From Gorsuch’s opening: 

    “Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.
    The law before us today is such a law….”

    , and from Thomas’s conclusion:

    “…Surely the Court cannot credibly invoke stare decisis to defend the categorical approach—the same approach it says only a “lunatic” would continue to apply. Ante, at 24. If the Court views the categorical approach that way—the same way Johnson viewed it—then it must also agree that “[s]tanding by [the categorical approach] would undermine, rather than promote, the goals that stare decisis is meant to serve.” 576 U. S., at ___ (slip op., at 15). That is especially true if the Court’s decision leads to the invalidation of scores of similarly worded state and federal statutes, which seems even more likely after today than it did after Johnson. Instead of adhering to an interpretation that it thinks unconstitutional and then using that interpretation to strike down another statute, the Court should have taken this opportunity to abandon the categorical approach for §16(b) once and for all.
    * * *
    The Court’s decision today is triply flawed. It unnecessarily extends our incorrect decision in Johnson. It uses a constitutional doctrine with dubious origins to invalidate yet another statute (while calling into question countless more). And it does all this in the name of a statutory interpretation that we should have discarded long ago. Because I cannot follow the Court down any of these rabbit holes, I respectfully dissent. “

    I wish all of our SCOTUS opinions were of this quality. Dare to dream!

  • Judicial Update

    April 13, 2018 Senate Slow Walks Trump’s Nominees This week marks the one-year anniversary of the confirmation of Neil Gorsuch to the Supreme Court. Many thought that President Trump’s promise to nominate Conservative judges was one of the most important factors in his … Continue reading

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