July 2009 Archives

Slowing It Down To Kill It

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The unions are telling us that "when something goes slow enough, it's easy to kill it, dead in its tracks."

When I first saw this ad I thought they were making the argument for slowing down health care reform. But they are apparently trying to say we should speed it up.

See, to me, if something is easy to kill when it's moving slow, that's because it's pretty weak to begin with, like the snail in the ad. And besides, since when is it wrong for the public -- and their representatives -- to actually analyze and discuss a major change to the American way of life before enacting it?

Can anyone think of a really good bill that got a ton of press coverage that didn't pass because the public looked at it too much? And even if you can think of one (I can't), isn't that worth the price that democracy demands of us, having an informed electorate, and informed representatives voting on our behalf?

I am up front when I say I don't want this health care reform to pass. I am against government-controlled health insurance, against the Health Insurance Exchange, against price controls, against market controls, and so on. I don't want to amend this bill, I want it dead.

But even if I wanted it passed, I can't see myself violating my fundamental principles by pushing it through before the public could have a chance to take a good look at it.

(And don't even get me started on the dishonesty of implying that because we've been working on health care reform for years, that it is not rushing things to push a thousand-page bill through the House in a few weeks.) slashdot.org

The Sotomayor Verdict

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I listened to the Sotomayor hearings, and I came away with conflicting impressions.

For example, she said unequivocally that the right to keep and bear arms is an individual right, something her perhaps-future liberal colleagues denied in their dissent of DC v. Heller. This is something that she could not easily go back on later, so that's a good thing. However, she also seemed a bit weak on questions about the finer points of incorporation doctrine (saying she wasn't sure what Presser v. Illinois said). On the other hand, I don't really care about her decision that the Second Amendment is not incorporated, since that's something I believe current doctrine says only the Supreme Court can do (even though I find that doctrine, Selective Incorporation, detestable).

I found her to be generally forthcoming, which is a good thing. I believe she's telling the truth that she looks at what the law says, and attempts to rule based on what it says. However, she also seemed to express approval of consequentialism, at various points, talking about interpreting law based on the effects of the laws, and so on. Unfortunately, the Senators really didn't give me a good feel for her views here, and it's something we can never really know about a judge until they are in that position, and she hasn't been.

I also had trouble with her answer for her "wise Latina" comment, more in her new answer than how I read her comment before, but I've already discussed that.

One thing I liked about her is that she draws (or refuses to draw, depending on how you look at it) interesting and thoughtful distinctions. She was asked whether the government "made mistakes" in passing certain anti-terrorism laws or performing certain actions that the Court has already struck down; she said, she didn't think so, that it wasn't that it made a mistake, it was just that the laws or actions didn't fall within constitutional or statutory limitations.

While one might reasonably call that a "mistake" to fail to fall within those limitations, the emphasis of the Senator was in trying to impugn the acts, and Sotomayor refused to do so. This is a distinction I tried to emphasize in the wake of the Court's striking down a portion of the Military Commissions Act due to its lack of protection for the right of habeas corpus: the law did attempt, and to some degree succeeded, in protecting that right; the Court simply ruled it didn't go far enough to do so. The Court was not saying the Congress was bad or evil or anything like that; it simply said the law in question needed improvement to be constitutional.

That is, there's a world of difference between saying "your law isn't good enough" and "your law demonstrates that you have no respect for the Bill of Rights." The Democrats tried to say the latter, but the Court only said the former, and Sotomayor picked up on it and answered it admirably.

At the end of the day, all things being debated and discussed, the question is whether I believe that she will fall prey to the diabolical evils of consequentialism, or whether she will hold true to the textual principles she upheld in her hearings. And all I can say is that I saw little attempt to obfuscate in the hearings; her record is one of following precedent and statute, and that I would not disqualify her due to my fears about whether she might not do what she said she would do.

I pray she doesn't prove herself to be dishonest, that she really does believe in the ultimate primacy of the law as written and intended, rather than the primacy of the divined "purpose" of the law (as Justice Breyer and President Obama believe) that allows a judge to simply ignore what the law says if so doing would, in their minds, fulfill the law's purpose.

If she believes that and can act upon it, given her obvious keen intellect and broad understanding of the law, then she is qualified, in my opinion, to serve on the Supreme Court, whether I would have chosen her or not; and as I believe that is the job of the Senator -- not to oppose people you are politically opposed to, but to oppose those who are unfit for the job -- were I in the Senate, I would vote to approve Judge Sonia Sotomayor's nomination to the Supreme Court of the United States.

I realize this opinion isn't going to popular among many conservatives and Republicans. It's a good thing I don't care about that. slashdot.org

Over on the public blog I saw a post that linked to a Investors Business Daily editorial which claimed a provision of the bill made "individual private medical insurance illegal."

But here's a hint: the quoted text from the bill starts out, "Except as provided in this paragraph." When you see that, it's a hint that you should read the rest of the paragraph.

If you read further, you find out the bill would only outlaw individual private health insurance that is not participating in the Health Insurance Exchange. It's right there:

Individual health insurance coverage that is not grandfathered health insurance coverage under subsection (a) may only be offered on or after the first day of Y1 as an Exchange-participating health benefits plan.

Now, this is still a really big deal: under this bill you could only buy individual health insurance products by going through the government and subjecting yourself to whatever terms and conditions the government mandates (mostly outside of the legislative process, mind you) for all such products. That is scary stuff. My friends and relatives on individual insurance are rightfully worried about this, especially given that the terms and conditions are not outlined in the bill, but left up to the new "Health Choices Commissioner" (whose explicit job it would be to limit your choices).

And it is, of course, quite possible that these mandates will essentially leave you with little or no choice: all products may end up costing about the same and having about the same benefits. And many, most, or even all private insurers may decide they cannot earn a profit under the government's conditions, and drop out of the individual health insurance market. All of this is possible, and scary.

But it would not outlaw individual private health insurance.

So I pointed all this out to a liberal friend of mine, and he informed me that this has been "all over the blogosphere." Being one who does not travel the blogcube, I looked around, and it seems he was right: many right-wing sites reprinted the original false claims from Investor's Business Daily as fact.


So, I present the facts here.

Have a good weekend! slashdot.org

White House Transportation Secretary Ray LaHood, annoyed that Senator Kyl of Arizona is arguing against the stimulus, wrote a letter to Arizona Governor Jan Brewer, lying about what Kyl actually said.

Kyl said he was against the stimulus, not against Arizona getting stimulus money while other states did get it. There's a big difference between those two things, of course: since it's your tax dollars, even if you are against the whole package, you might as well get your fair share of it.

Yet LaHood said in his letter, "If you prefer to forfeit the money we are making available to your state, as Sen. Kyl suggests, please let me know."

Of course, Kyl suggested no such thing;he wanted an end to all stimulus spending, not just for Arizona. And it's pathetic that an executive official would engage in such dishonest partisan politics.

It basically went like this: Kyl says to cancel all federal stimulus spending. The Obama administration says, "OK, we'll cancel ARIZONA'S spending if you want to. ..." Then Kyl says, "um, what?" And then they say, "ha ha, called your bluff!" This is the level that they're stooping to.

The one bright spot in this is that I get to snicker at FireDogLake cackling like a hyena because Kyl is inconsistent between what he actually said, and what he never said. I am not sure whether "Blue Texan" believed this propaganda from the Obama administration, or if he was just playing along. slashdot.org

Free Milk

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NewsHour had an interesting story about problems in the dairy market caused by increased efficiency and a glut of milk.

One dairy farmer says because he has cows producing milk he can't use, he is losing over $70 per cow per month, because he still needs to feed and maintain those cows. His solution? Have the government take money from successful farms and give it to unsuccessful ones.


He is losing in the market, so he wants the government to "establish a certain amount of allowable growth, facility by facility, dairy farm by dairy farm. And if you exceeded that growth rate, you would pay a market access fee," where those fees would go to dairies that didn't grow.

This might sound shocking to many of us, but the sad thing is that our government does this sort of thing all the time. Legislators can't help themselves. They love micromanaging everything they can, and damn your rights in the process. It's like when state legislator Hans Dunshee (D-44) justified state regulation of animal masseuses with a shrug, saying, "people come to ask us to do things, you know?"

Except this is for the farmers. The unsuccessful farmers, anyway. slashdot.org

Incorporation Again

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In case you're still not clear what all this talk in the hearings today is about "incorporation," check out my previous posts on the matter. Bottom line is that it's the way the Court has decided whether to force states to respect our rights as U.S. citizens, and it is coming up primarily in regard to the Second Amendment and the court's recent decision in DC v. Heller, which recognized a federal (but not state) right to keep and bear arms. slashdot.org

I'll have a lot more to say about Judge Sotomayor, but I am disappointed in her testimony about her "wise Latina" remark to the Senate today.

In a speech a few years ago (and on several other occasions) she built an argument, saying that she disagreed with Justice O'Connor's claim that in reaching decisions, a wise woman will reach the same conclusion as a wise man. Rather, she explicitly argued, a "wise Latina" will reach a better conclusion than white men.

She clearly meant what she said: it wasn't an offhanded comment, it was an explicit and intentional and reasoned and argued claim.

Her argument today, however, is that she was trying to agree with what she believed O'Connor intended, while disagreeing with O'Connor's words:

Justices on the Supreme Court come to different conclusions. [O'Connor's words] can't mean that one of them is unwise. ... So her literal words couldn't have meant what they said; she had to have meant that she was talking about the equal value of the capacity to be fair and impartial.

I think she is misrepresenting her own words ("better" vs. "equal value ..."); but -- in my opinion, worse -- she is getting O'Connor wrong. O'Connor did mean that they will come to the same conclusion, not that their different conclusions will have the same value. O'Connor believes that the law is not something to be viewed differently by people with different life experiences, but something that has, ideally, correct and incorrect interpretations. That we are under the Rule of Law, not the Rule of Man. As she wrote in the Chinese Journal of International Law (2003), "the Rule of Law requires that legal rules be publicly known, consistently enforced, and even-handedly applied."

And that's what's really troubling to me here: worse than saying that she will reach superior conclusions by her experiences, she is saying that different conclusions by wise people are of "equal value." (And it's especially irrational in light of the fact that she ties it to impartiality, a concept that denies that your experiences have a significant influence on your conclusions.)

Sotomayor said this claim to female and Latino audiences, saying she was "trying to inspire them to believe that their life experiences would enrich the legal system, because different life experiences always do. I don't think that there's a quarrel with that in our society."

I do deny that the legal system is enriched by having judges who will view the law through their own experiences, rather than by what the law says. I deny that rule of man is a good thing, that inconsistency is positive. I assert that rule of law is the path to justice and order and liberty.

I am not sure what to believe at this point: does she believe that her experiences make her a better judge (in certain cases, at least); or does she believe that her experiences simply make her a different judge and that application of the law is "enriched" by having judges who will apply that law differently based on their distinct lack of impartiality due to those experiences?

Frankly, her explanation today troubles me more than her initial statement. slashdot.org

What I Would Ask Sotomayor

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So far I remain unconvinced that Sotomayor -- unlike some of her probably future colleagues on the Court, such as Stevens, Ginsburg, and Breyer -- is an "activist" judge. By "activist" I mean that the judge does what she thinks is good and right, rather than what the law says.

As I've mentioned several times before, Justice Breyer makes the case explicitly in his book Active Liberty that the Constitution's words are less important than its supposed "purpose" and whether the likely "consequences" of a law fit that intent. So, for example, Breyer can uphold a law restricting political speech -- clearly prohibited by the text and history of the First Amendment -- because the "purpose" of the First Amendment is to "promote public discussion," and a restriction on one person's speech might do so.

Literally, to these people, the words of the law don't matter, if some higher "purpose" of the law is met. Conservatives, on the other hand, tend to believe that the purpose of the law is in upholding the principle embodied by the language itself: we encourage public discussion by refusing to allow such restrictions on speech, not by relying on a judge to tell us what might and might not do so. And if that for some reason doesn't work, we collectively amend the law, rather than asking a judge to make that determination for us by ignoring the words of the law.

So I'd ask Sotomayor what she thought of Justice Breyer's short volume, and his words and their implications.

But I'd also ask what she thought of President Obama's judicial philosophy, as expressed in Audacity of Hope. In that book, then-Senator Obama criticized "strict constructionism" and its adherents. He wrote:

Some, like Justice Scalia, conclude that the Founding Fathers will tell us all that we need to know, and that if we strictly obey the rules they've laid out -- for example, that the only rights protected in the Constitution are those that are written in plain English as understood by those who wrote them -- then democracy is respected, and fairness is achieved.

Unfortunately, none of that is true. First, Justice Scalia is not a strict constructionist (few people are) but a textualist. This it not a minor semantic difference, because Obama emphasizes strict and complete adherence to the text, which is a feature of strict constructionism, but not of textualism.

Second, no one -- not even strict constructionists -- believes the Founding Fathers told us all that we need to know to preserve democracy and fairness, as even they believe it's merely a starting point, and that further amendments (such as, in particular, the 13th, 15th, and 19th amendments) may be necessary.

Finally, no strict constructionist, nor Scalia, believes that the only rights protected in the Constitution are those that are written out, because any strict constructionist will recognize the Ninth Amendment, which says that other rights may exist.

Now, President Obama's lack of understanding (hopefully his misrepresentations were not intentional) are beside the point, but they lead into something worse.

Far wose.

Obama notes correctly that Breyer is, in essence, a consequentialist ("take the practical outcomes of a decision into account", even if they violate the letter and intent of the law), but it gets worse than merely agreeing with Breyer (which is bad enough). He then writes:

The historical record supports such a theory. After all, if there was one impulse that was shared by all the Founders, it was rejection of all forms of absolute authority, whether the king, the theocrat, the general, the oligarch, the dictator, the majority, or anyone else who claims to make choices for us. But it's not just absolute power that the Founders sought to guard against. Implicit in its structure, in the very idea of ordered liberty, was a rejection of absolute truth, the infallibility of any idea or ideology, or theology, or ism ... any tyrannical consistency that might lock future generations into a single, unalterable course, or drive both majorities and minorities into the cruelties of the inquisition, the pogrom, the gulag, or the jihad.

There's so much wrong with this it's hard to know where to start. I'd love to spend hours picking over the utterly nonsensical notion that the Founders rejected absolute truth, when in fact the nation was founded on, and because of, the absolute truth that all men are created equal and are endowed with certain unalienable rights that government exists to secure.

It's true that some -- perhaps most -- ideologies can be dangerous, and we should not force future generations into them, let alone the current one. But the idea that man has unalienable rights that government exists to secure is not one such ideology. And it is this ideology from which conservative -- textualist, originalist, and strict constructionist -- judicial philosophy flows. It's the idea that in order to secure these rights, we must have rules, and follow those rules, until such point as they are changed, or we find they come into direct conflict with those rights.

It's not "tyrannical" to secure liberty for ourselves and our posterity, and to set up a system thatr people are "forced" into that secures those rights ... as long as they are, in fact, secured. Forcing future generartions into Social Security, or Medicare, or ObamaCare, or other such massive obligations ... that can be seen as tyrannical. Forcing them into a society where government respects their liberty isn't.

But to bring it back to Sotomayor and her hearings, I'd ask her if she agrees that some notion of a historical rejection of absolute truth or authority of any kind -- explicitly including that of the Constitution itself -- justifies a Justice ignoring what the Constitution actually says in favor of pushing for certain higher "purposes" or preferred "consequences."

I sincerely hope she would disagree with such a fundamentally irrational view as expressed by our President. She could go a long way to gaining my support by doing so.

I'd also ask her a (slightly) more practical question. She is not allowed to answer questions about cases that might come before her, so I'd pose a hypothetical similar to: if Congress passed a law saying that all women in private companies may be paid less on alternate Thursdays, would you find this law to be unconstitutional? The Constitution does not prohibit this, and this law was written later to specifically override all past laws that forbid such discrimination. So her answer would be telling: if she says she would find it unconstitutional, then that means she's putting herself above the law. slashdot.org

KING5 went after Tim Eyman's initiative 1033 on Up Front today, trying to claim that we're not overtaxed and that our services will need to be cut. The former is an opinion, and the latter isn't true. You can watch the whole piece here.

Eyman didn't get much time to speak, and while he gave the basic idea for I-1033, he didn't really get into the details of how government has been growing out of control. But he did win the argument anyway. slashdot.org

KING5 Up Front did a story on health care reform this weekend, and featured a portion of an interview with Governor Christine Gregoire.

In between sophomoric catchphrases like "it's a sick system, not a health care system," she was asked by reporter Meg Coyle about Obama's public health option running out of money, and Gregoire responded that the public option would be paid for only by those who subscribe to it, and not taxpayers' dollars.

She actually said this. Not only does it deny what Obama says in his own plan -- Obama would give tax credits to pay for the health insurance plan for people who can't pay for themselves, which is effectively the same as paying for it out of the general fund -- but it defies common sense anyway. No sane and intelligent person can believe that this won't continue to be expanded to include every person who wants it and can't pay for it. Just like every other government program, it will inevitably become a welfare program. That's the whole point.

Gregoire said in the interview that some critics say government can't do it. "If government can't do it, what's everybody afraid of?" She said if it doesn't work, it doesn't work; that people are afraid it WILL work, and that's the source of their criticism.

But we know for a fact (because he said so himself) that the ultimate Obama plan is single-payer health care: any deficiencies in the system will just be an excuse to further expand the scope of the system. And once we are in single-payer, it will be almost impossible to go back, even if it isn't working. slashdot.org

I'll be performing at the July 4th Tea Party in Everett, at the Snohomish County Courthouse Plaza. I'll play two or three songs, starting around 12:30. The rally starts at 1 p.m. The group putting on the Tea Party, Renew Liberty, is also participating in the Everett parade.

If you come to Everett, please wear red, white, and blue. The theme of the day, "Colors of Freedom," is "a community celebration of American diversity." I tend to think July 4th should be a celebration of our independence and freedom. Diversity's a great thing, but can't we spend just this one day focusing on liberty? Isn't that the point?

To help your Independence Day weekend kick off right, here's a video I recorded last night, a cover of a song by Roy Hurd called "Lookin' for America."


<pudge/*> (pronounced "PudgeGlob") is thousands of posts over many years by Pudge.

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

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