This is an old post from an old site, in the wake of the original decision, one that has just been reversed.
I'm pleased as punch with the 9th US Circuit Court of Appeals' recent decision that the words "under God" in the Pledge of Allegiance violate the Constitution. It's plainly obvious that they do so, but our court system has always been scared to actually say so. While our poor excuse for a Supreme Court will certainly overturn this decision, it's good to know that there are at least two Federal judges left with some courage and integrity! Too bad Congress is full of cowards. Just because we haven't always had the strength of our convictions in the past, doesn't excuse that lack of strength today.
I'm painfully aware that most people disagree with me. But for the life of me, I don't understand why. I was trying to think of a way to explain what's wrong with the Pledge when I came up with this. Just replace the word "God" with the phrase "White Rule." This works for both the pledge:
"one nation, under White Rule, with liberty and justice for all"
As well as for the national motto, seen on currency among many other places:
"In White Rule We Trust"
The neat thing is that all the usual arguments for the inclusion of "God" still apply:
|Reasons to include "God"||Reasons to include "White Rule"|
|This is a Christian country and you had better just get used to it.||This is a white-ruled country and you had better just get used to it.|
|The majority of Americans are Christians.||The majority of Americans are white. |
(Still true as of the 1990 census.)
|It's not actually an endorsement of religion.||It's not actually an endorsement of racism.|
|It's merely an acknowledgment of our Christian heritage.||It's merely an acknowledgment of our white ruling heritage.|
|The founding fathers approved of the use of "God."||The founding fathers approved of white rule. |
(Quite explicitly, I might add.)
|We've always permitted the use of the term "God" before so we shouldn't stop now.||We've always permitted white rule before so we shouldn't stop now.|
|It doesn't specify a particular religion. |
(Well, it doesn't specify a particular monotheic religion
with a personified male deity.)
|It doesn't specify a particular white race. |
(It could be the Irish, or maybe the Norwegians.)
|Our nation's moral fiber has weakened ever since we took the concept of "God" out of our schools.||Our nation's moral fiber has weakened ever since we took the concept of "White Rule" out of our schools.|
|If you take "God" out of the pledge, next you'll be taking it off our currency. |
|If you take "White Rule" out of the pledge, next you'll be taking it off our currency. |
|Our founding fathers would be spinning in their graves if they knew we took "God" out of our government.||Our founding fathers would be spinning in their graves if they knew we took "White Rule" out of our government.|
If the arguments are the same and equally valid, then I guess it would be okay to include "White Rule" in both the Pledge and in the motto. Any of you Pledge supporters have a problem with that? Maybe now you're beginning to understand why the inclusion of "God" isn't a good thing in a society that has a diversity of citizens and claims to have freedom of religion.
The point here isn't to try to equate religion with racism. The point is that the Constitution provides protection against the government encouraging and endorsing both religion and racism. (Albeit through different mechanisms.) I think most people would agree that including "White Rule" in the Pledge and in the motto would violate the constitutional rights of non-white folks. However, if the arguments for the inclusion of "God" are valid, then they're also equally valid for "White Rule." The painfully obvious conclusion is that the arguments for inclusion are invalid and that the inclusion of "God" violates the Constitution.
Note that the issue here isn't whether religion is good or bad. The Constitution protects against government sponsorship of religion. The inclusion of "God" does constitute such sponsorship as surely as would the inclusion of "White Rule."
Frankly, I think the real problem here is that most Americans don't really believe in the First Amendment. Each of us tends to think that everyone one else should believe and act like they themselves do. I think that's a natural tendency, but one that we need to fight. The First Amendment is the cornerstone of our society. A diversity of beliefs and ideas is the very strength upon which this country was built. It's much more important than some shared religious view.
When it comes to porn, the court system is just fucked up.
The whole idea of community standards is just wrong. Why should someone's First Amendment rights ever be subject to the opinions of people who happen to be geographically close to them? It conflicts with the very idea of people having rights unassailable by the majority. It's nuts.
But, at least it's somewhat workable. If you don't like the community standards in one area, you can move to another. You shouldn't have to, but you can.
But now we have a mind-boggling stupid court decision regarding online porn.
Here's the deal: The court held that porn material online can be held to the community standard of any community in which they can be viewed. Let that sink in for a minute.
Yes, that means that you could produce a piece of porn in Los Angeles, put it online, and someone in Podunkville could watch it and then have you arrested for violating their local community standards.
Or, as one Slashdot comment put it:
So by that measure we should censor all pictures of women's faces as it violates the decency standards of Iran.
Now, let me be clear, Max Hardcore is a slime-ball asshole. If you get off on his movies, you have serious issues and you should see a shrink. Seriously.
But as long as the people making the movies and watching the movies are doing it of their own free will, it shouldn't be illegal.
But now, under this ruling, anything on the net is now subject to the standards of, say, Utah.
Oh, wait, Utah consumes the most porn, per capita, of any state in the union. Gee, I wonder why?
So, Sarah Palin managed to last one lone semester in college in Hawai'i. Why is that, other than her natural tendancy to quit things?
According to her own father, in this dual book review, it was because she was uncomfortable with all the minorities!
The irony, of course, is that white folks are a minority in Hawai'i. She wasn't uncomfortable with minories. She was uncomfortable being the minority.
Now she should know what black folks, or any other minority, deal with every fucking day. It could have been a valuable learning experience. But no, she goes to Idaho of all places to bask in her whiteness. Then she gains fame with us versus them talk. She's a Real American and everyone not like her isn't.
Well, fuck her and fuck each and every person dumb enough to think she's hot shit. You're half right. Ha ha ha!
(I got about one hour of sleep last night and I'm extra fucking cranky.)
The webs are alight with news that Obama won the Nobel Peace Prize. Most folks, even those on the left, are kinda wondering what he's done so far to deserve it. My favorite quotes today:
John's friend Ben:
Its interesting to note that the deadline for nominations was February 1, 2009. Its amazing what he accomplished in 11 days in office.
I originally thought he was being a dick. Just because the deadline is then doesn't mean that the selection criteria was limited to that timeframe. But then I did some research. In February and March, there's a committee that narrows down the 200 or so nominees to a short list. And, frankly, there's no way Obama did enough to justify being on the short list in that small a period of time. So his criticism was pretty spot-on.
My other favorite quote comes from PZ Myers, after pointing out that Obama hasn't really done a whole lot regarding ongoing wars:
Oh, well. It's definitely more appropriate than the award to Kissinger, but that isn't saying much.
The strange thing in all this is the concept of whether Obama
deserves the prize. It's strange because it betrays an assumption that there is a set of criteria by which we can judge candidates and determine their worthiness. There isn't. The only criteria is that a majority of folks on the Nobel Committee voted for a particular candidate. That's all. Anything beyond that is, well, your problem.
So, does Obama
deserve the prize? Well, he garnered a majority of the committee votes, so, by the criteria of the award itself, yes, he does deserve it.
If you're ever in Oslo, and you have some time to kill, you can check out the Nobel Peace Center. It's by the docks, next to the big-ass mall.
It's a neat place to visit, but I'll be honest, there are cooler things to see in Oslo.
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
Where I think we lefties get this wrong is in claiming that the first half of the Amendment acts as a modifier for the second half. In other words, that the Amendment grants folks the right to carry guns only to the extent needed to provide a for the security of the country.
Unfortunately for us, that's not what it says. It sets up a condition to be addressed, then sets up a means to address said condition. It does not then follow that the means are constrained to the condition.
To help see this, let's remove the semantic issue from the loaded politics that surround it.
Let's pretend that we have a dumb-ass for a President who can't be trusted to eat a damn pretzel without potentially choking to death on it. (I know, seems like only yesterday, doesn't it.) To protect the President, we might have an Amendment that says:
A non-choking-to-death President being necessary to the functioning of the Executive Branch, the manufacture, sale, or transportation of pretzels within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof is hereby prohibited.
So, what does this mean? Does it mean that pretzels are banned to the extend necessary to prevent the President from choking on one? Maybe within a 100 mile radius of the guy?
No, it means the damn things are banned. Completely. (If you really hate the example, substitute cheeseburgers and think about Bill's cholesterol levels.)
If we divorce the semantics from the political issue, we see the real problem. The real problem is that the means used to address the condition are overly broad. How do you fix that problem? Well, luckily, there's a process for that. It's called
tough titties. We don't always get our way. That's how life is.
What we shouldn't be doing is claiming that the plain language of the Amendment says something that it doesn't. Why? Because then we're no better than the fools who apparently can't read and understand the Ninth Amendment.
So, after all of this, does mean that I'm pro-gun? No way! Defending the Second Amendment != Pro-Gun. For most of us, owning a gun is a stupid, stupid thing to do. But, what about our right to defend ourselves? Well, it's not about that at all. It's the simple fact that most of us would be too busy pissing ourselves to be able to pull the trigger.
I know, I know, you have these daydreams of being a hard muthafucker who can pop a cap without blinking. Guess what? I have them, too. They're daydreams. You aren't really gonna be able to do that kind of shit. It's hard to admit, especially for guys. If it makes it any easier, Bruce Willis and Kiefer Sutherland don't really go around beating up terrorists either. (A fact Scalia doesn't understand. Yes, that should scare you.)
What having a gun in your house means is that what are essentially property disputes immediately escalate to life-or-death situations. I own a lot of stuff. But none of it, not my MacBook, not my statue of Moon Knight, nothing, is worth me or my family getting hurt over. And, if I'm honest with myself, I know that in a gun wielding situation, even a half-assed criminal has it all over me.
Plus, of course, it's much more likely you'll kill one of your own family though accident or rage than ever take on a criminal.
Oh, I hear you say, but you're different. Probably not. Here's the deal: the US military expends loads of resources to turn men into people willing to kill when necessary. Why? Because that's what it takes to turn men into hard muthafuckers who can pop a cap without blinking. (Good thing, too.) Unless you've recently had the benefit of that training, that ain't you.
And if you have had that training? Then you can probably get some use out of a piece. Of course, you're also probably on your 5th tour of the Middle East because the country as a whole is unwilling to shoulder part of the burden we're asking you to carry. Which is another topic entirely.
The Fallacy of Strict Constitutionalism
With the death of Chief Justice Rehnquist, there will be lots of talk about how he's moved the court in a conservative direction. The theory that Rehnquist and others of his ilk expound is called
Strict Constitutionalism. It claims to be a reasoned philosophy that should guide judges as they decide cases. But it's not. It's a sham, provably false both factually and philosophically.
Strict Constitutionalism rests on three main ideas:
Let's look at each in turn.
The Legislative Branch should not be readily overturned
Strict Constitutionalism says to cede power to the legislature. The people elect the legislature and their will, via the legislature, should be followed. There are two problems with this. First off, the legislature is made up of folks from the majority. Simply following the legislature results in a tyranny of the majority. This tyranny is dealt with by the Constitution, but not primarily via the Bill of Rights. We'll get to that later.
A second problem is that the conservative justices don't follow their own rules. They, and those like them, complain about "activist judges" striking down laws left and right and legislating from the bench. It would be interest to see if that was really true. Actually tracking that for all 17,000 plus courts in the country would be a daunting task. But counting it for the Supreme Court isn't all that hard. In fact, the New York Times did just that.
The Times counted up the number of Congressional laws put before the Supreme Court, then counted how often each justice voted to overturn those laws. Remember, these Congressional laws were passed by the duly elected representatives of the people and, according to Strict Constitutionalists, should rarely be struck down.
What the Times found was interesting. Contrary to what the Republicans have been saying, the more conservative justices tend to be the ones most likely to overturn Congressional laws. The correlation is very high between being a "conservative" justice and being prone to overturning the will of the people via their elected representatives in Congress. The most liberal, and thus "activist," justices are least likely to overturn. And centrist justices, like O'Connor and Souter, are in the center. The only way in which this correlation could be higher would be if Scalia came in second rather than third.
Here are the percentages calculated by the New York Times:
Note that Scalia is twice as likely to overturn the will of the people than is Breyer. And Kennedy and Thomas are even more so. The idea that conservative justices are dedicated to respecting the will of the people, as expressed by Congress, is simply a sham. The only laws they care about not overturning are those that limit freedom. And that leads to our next section.
The American people have only those rights enumerated in the Constitution
The second pillar of Strict Constitutionalism is that the Constitution, namely the Bill of Rights, enumerates certain rights and those are all the rights that Americans are guaranteed. If the Constitution doesn't list a right, that right doesn't exist. Basically, this assertion can be summed up as:
The enumeration in the Constitution, of certain rights, should be construed to deny or disparage other rights.
The prime example is the right to privacy. (Actually, to Strict Constitutionalists, it's the
so-called right to privacy.) It's not listed in the Bill of Rights, thus it doesn't exist.
Again, there are two problems with this assertion. First off, what twisted mind-set do you have to possess to think that people should have as few rights as possible? Anyone who claims that the basic rationale of the Constitution is to limit our freedoms to a small number is just plain insane, or evil.
Second? Well, the Constitution says to not view the Bill of Rights that way. It's why the 9th Amendment exists:
- Ninth Amendment
- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
That's right. The Constitution itself says that one of the basic assumptions of the Strict Constitutionalists is dead wrong. Wrong, wrong, wrong! When Scalia says you don't have a right because he can't find it in the Constitution, he's wrong. And he knows he's wrong. He's certainly read the Constitution enough times to have run across the 9th Amendment. And the language is very clear and straight-forward. But he doesn't care.
The history of the 9th Amendment is interesting. It seems strange, but many of the founding fathers resisted the idea of a Bill of Rights. Here's basically how the debate went:
Founding Father One: We have this wonderful Constitution that strictly limits what the Federal government can do. Any power not explicitly mentioned as something the Federal government can do is reserved to the States and the people. What could go wrong?
Founding Father Two: Well, you know how governments are. We should, as a precaution, explicitly list some rights that the people have, as an example.
Founding Father One: That's a good idea, except for one thing. If we explicitly list a bunch of rights, some folks might interpret that to mean that those are the only rights that the people enjoy.
Founding Father Two: Oh, c'mon! Who could be that stupid? The Constitution is clearly a document limiting what government can do. No one in their right mind would view an enumerated list of rights as being a limit on the rights enjoyed by the people. That's just crazy talk.
Founding Father One: As you said, you know how governments are. Wait! I have a brilliant idea. We'll add an Amendment that explicitly says that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. I think we're agreed that no one could be stupid enough to now think that the Bill of Rights is an exhaustive list of rights.
Founding Father Two: You're right! No one could be that stupid.
Justices Scalia and Rehnquist: You only have the rights explicitly mentioned in the Bill of Rights.
Now, Scalia and Rehnquist aren't really that stupid. They're that evil.
When talking about the Constitution, it's important to remember what the Constitution is. It's a document that explictly lists what the Federal government is allowed to do. In truth, the Federal government has much more power than the Constitution explicitly allows. Go read any Libertarian web site for more on this. Arguably, this extension of power is needed in order for a country the size of the US to function. But always remember. The Constitution is a limit on the Federal goverment, not on the people. Who says? The 10th Amendment:
- Tenth Amendment
- 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.
Whenever faced with a
rights-based issue, the Strict Constitutionalist justice likes to ask
Does the Constitution explicitly mention this as a right the people have? The proper question is
Does the Constitution explicitly mention this as a right the government is allowed to take away?
Follow the Intent of the Founding Fathers
Strict Constitutionalists are big on following the original intent of the founding fathers. Once again, their are two problems with this. First, the founding fathers denied the majority of the population a number of basic civil rights. Women couldn't vote, nor did they exist as a legal entities after marriage. Black were property. The founding fathers weren't evil by the standards of their time. But to think we ought to always blindly follow the intent of misogynistic slave holders is folly, especially regarding civil rights issues.
Second, well, their intent was that the Bill of Rights shouldn't be construed as a limit on the freedoms we enjoy. Here's what James Madison had to say:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.
last clause mentioned is the 9th Amendment. It's left out of the quote, but I'm sure the next thing Madison said was:
And anyone who tries to deny rights based on their omission from the Bill of Rights is just plain stupid, or evil.
I was pondering the rise of Ayn Rand while taking my daily walk and realized something new, for me at least.
The appeal of Rand (and of Objectivism and Libertarianism) to a certain segment of the population is clear. I'm talking, of course, about successful white people who don't (want to) realize how much of their success comes from the fact that they're white. (I'm using
white as a general term for
in a socially favorable position.)
Basically, Rand appeals to people who rose to success by dint of their social position, but want to pretend that they did it all themselves. That's not the new part.
See, I was reading a blog. It's a nice little personal blog. And the writer is living an ordinary life, like most of us. She's in a low-level job. She doesn't have wads of cash lying around, but she's managing okay. She's been reading Rand's Atlas Shrugged and she's enthralled with it and with Objectivism. And, I couldn't figure out why. After all, she wasn't having an extraordinarily successful life. Did she really think she was one of the productive elite in the book? Did she really think that Rand would view her as such? Why would someone who is not terribly successful embrace a philosophy based on success?
And then it came to me. It's the flip-side of the earlier group. Rand also appeals to people who haven't risen to success, because it gives them an excuse for their
failure. If only government would stop its infernal social-leveling and let them be free, they would succeed.
This led me to a two-step procedure for determining whether someone would be susceptible to Rand's philosophy:
Applied to white folks, a "Yes/Yes" or a "No/No" would suggest Randian leanings.
Then I tried expanding this a little and came up with the following decision tree:
The reason for the
Are you white? question is simple. If you've landed on those spots and you're
white, you're fooling yourself about the nature of your success, or lack thereof.
Is Texas seceding?
No, I don't think they'll actually try such a thing. It would be doomed to failure anyway.
But, what if they did secede?
Nick Silver crunches the electoral numbers. But I had a different concern.
What about Austin? That's where all the cool people like Dawn (whom you don't know), Bob Mould (whom you should), and Willie Nelson live. That's where all the liberals in Texas live. (I think there's a law or something.) We couldn't just abandon them!
We'd have to build an
Austin Wall around the city. (Yeah, like the Berlin Wall. Only we would be building it.) We'd have to airlift in supplies! (Yeah, like the Berlin Airlift.) Obama would be giving
I am an Austiner speeches.
The other thing is, once Texas seceded, we would need to immediately invade under our
We Can Do Whatever The Fuck We Want If It Means Getting Us Some More Fucking Oil! policy.
I'm glad he's dead.
Important men, pondering the important issues of the day!
What could they be pondering? The state of the economy? The wars in Afghanistan and Iraq? Our crumbling infrastructure? Why Chief Justice Roberts can't read a goddamn Oath correctly?
(It ain't Tild~, but I still like it.)