24 April 2015
I'm glad something like this can't happen here.

Writing at National Review Online, David French interviews some of the victims of the "John Doe" persecution, giving voice to those who were simultaneously targeted, humiliated, intimidated and muzzled. Here's one of several terrifying vignettes:

Cindy Archer, one of the lead architects of Wisconsin’s Act 10 — also called the “Wisconsin Budget Repair Bill,” it limited public-employee benefits and altered collective-bargaining rules for public-employee unions — was jolted awake by yelling, loud pounding at the door, and her dogs’ frantic barking. The entire house — the windows and walls — was shaking. She looked outside to see up to a dozen police officers, yelling to open the door. They were carrying a battering ram. She wasn’t dressed, but she started to run toward the door, her body in full view of the police. Some yelled at her to grab some clothes, others yelled for her to open the door. “I was so afraid,” she says. “I did not know what to do.” She grabbed some clothes, opened the door, and dressed right in front of the police. The dogs were still frantic. TOP STORY: Carly Fiorina Has Hillary Defenders Worried “I begged and begged, ‘Please don’t shoot my dogs, please don’t shoot my dogs, just don’t shoot my dogs.’ I couldn’t get them to stop barking, and I couldn’t get them outside quick enough. I saw a gun and barking dogs. I was scared and knew this was a bad mix.” She got the dogs safely out of the house, just as multiple armed agents rushed inside. Some even barged into the bathroom, where her partner was in the shower. The officer or agent in charge demanded that Cindy sit on the couch, but she wanted to get up and get a cup of coffee. “I told him this was my house and I could do what I wanted.” Wrong thing to say. “This made the agent in charge furious. He towered over me with his finger in my face and yelled like a drill sergeant that I either do it his way or he would handcuff me.” They wouldn’t let her speak to a lawyer. She looked outside and saw a person who appeared to be a reporter. Someone had tipped him off. The neighbors started to come outside, curious at the commotion, and all the while the police searched her house, making a mess, and — according to Cindy — leaving her “dead mother’s belongings strewn across the basement floor in a most disrespectful way.” Then they left, carrying with them only a cellphone and a laptop.

The left are at war, fighting for the little guy.

Inter arma enim silent leges and all that.
21 April 2015

[T]his is an unfortunate result, and also requires Texas courts to now decide who counts as “media” for First Amendment purposes. Do book authors qualify? Filmmakers? Academics? Bloggers? (Does it matter whether they make money blogging? Whether they blog on The Washington Post site, even if they are not newspaper employees?)

It seems unlikely that either the Texas Supreme Court or the U.S. Supreme Court will agree to hear this case, partly because the Court of Appeals concluded that the bottom-line result would have been the same regardless of how the nonmedia rights issue was decided. But I hope that eventually higher courts will overrule the ruling.


Almost literally an unprecedented decision.
15 April 2015
Jonathan Adler asks what it will take to convince libertarians and conservatives that climate change is a problem. Probably the recognition that man-made global warming does not mandate any particular policies. Of course, to a certain extent, libertarians and conservatives are entitled to be skeptical of the grounds used to justify certain policies. Golly gee, there's this problem which, arguable means, we must lose ever more liberty; and the people telling us all about this problem are, in large part, people who are always agitating for policies which result in loss of freedom, especially economic freedom.

Still, no policy position is mandated by acceding to the reality of climate change.
10 April 2015
Unsettled Science? More scientists doubt salt is as bad for you as the government says.
For years, the federal government has advised Americans that they are eating too much salt, and that this excess contributes yearly to the deaths of tens of thousands of people. But unknown to many shoppers urged to buy foods that are “low sodium” and “low salt,” this longstanding warning has come under assault by scientists who say that typical American salt consumption is without risk. Moreover, according to studies published in recent years by pillars of the medical community, the low levels of salt recommended by the government might actually be dangerous.
And to think for decades I've thought the debate was over.

04 April 2015

Hey, you're not being asked to swing with 'em!

According to Penn Jillette,  here, commenting on Indiana’s supposedly anti-gay legislation:

These people are not being asked to engage in gay sex or even endorse gay sex. They're being asked to sell flowers and cake to people....Now, I'm a libertarian and an atheist, so I'm kind of fighting myself on this. I don't like the government involved with telling people what to do and I certainly want people to have religious freedom--because the only way that people who don't have religion are going to have freedom is if people who do have religion have freedom. But all the same, we have to be careful we don't get crazy in the hypotheticals. We are not talking about forcing people to engage in gay sex or even endorse gay sex. We're asking that maybe they can treat people the same as other people and that does not seem unreasonable. It's OK, I guess, but goofy to be against gays, but it's not OK to be against people who simply want to...use your services as a business.

Fair enough. They not being asked to engage in gay sex, or even endorse gay sex.

But now, what if instead of being asked to cater a gay wedding, one were asked to cater a swingers' party. (Note: It is irrelevant that swingers would likely not have their parties catered.) Could the same person who is not free to decline catering a gay wedding, decline to cater a swingers' party? Think of it: A caterer who caters a gay wedding because not to do so, by virtue of being discriminatory, would be illegal, can turn right round and refuse to cater a swingers' party. How could this be? After all, these people are not being asked to swing themselves. Moreover, they may not even see the swinging.

What if, nevertheless, a caterer has a religious-moral objection to the sort of activities in which swingers engage, the same sort of objections he or she may have to gay weddings? That is, it conflicts with the sexual ethics of one's worldview. Apparently, one's religious-moral objections to swinging would be an acceptable basis in the law for refusing a request to cater such an event, but those same objections to same-sex marriage would not justify turning down a request for catering services.

Remember: No one is asking a caterer to swing with the swingers. No one is even really asking that a caterer even see the swinging. No one is asking a caterer to approve of swinging. To paraphrase Jillette, caterers are only being asked that maybe they can treat people the same as other people. That doesn't seem unreasonable. It's perfectly fine, if not a little goofy to be against swingers, but it's not perfectly fine to be against people who simply want to...use your services as a business.

Needless to say, the same goes for a photographer or anyone else whose goods and services may be desired by the swingers, again with the stipulation that these purveyors would not be participating in or even seeing the swinging as it takes place.


24 March 2015

Kelo, ten years later

It was just last week sometime I was wondering about this.
In its highly controversial 2005 decision in Kelo v. City of New London, the Supreme Court ruled that state and local governments have the power to take private property and transfer it to other private owners in order to promote “economic development.” It thereby upheld a poorly conceived development plan in the Fort Trumbull neighborhood of New London. Unfortunately, as critics predicted at the time, the plan fell through and the condemned property lies empty to this day, almost ten years later
So, your local government condemns and takes your property and then, well, nothing. To call this insult added to injury would hardly do it justice, so to speak.
23 March 2015

No government can claim the specific power

to command its subjects to buy any particular good without tacitly claiming the more general power to command subjects to to buy anything at all. And given the nature of human action, a government cannot claim the specific power of mandating purchases without tacitly claiming the more general power of mandating anything at all, to include voting.

For example--to drive home the point with a hammer--the way is paved for a subsequent generation of Americans to be commanded to embrace a religion upon pain of taxation. (Justice Roberts explained it.)

You think I exaggerate. But there is a footnote in Justice Roberts' opinion in NFIB v SIBELIUS which should replace footnote 4 in US v. CAROLENE PRODUCTS as the most famous footnote in US legal history.

In footnote 11, (slip opinion, 44), Roberts writes:
[I]ndividuals do not have a lawful choice not to pay a tax due, and may sometimes face prosecution for failing to do so.... But that does not show that the tax restricts the lawful choice whether to undertake or forgo the activity on which the tax is predicated. Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.
So we still have freedom of choice: (i) choose to buy insurance and pay less in taxes; or (ii) choose not to buy insurance and pay more in taxes. It amounts to a choice between lower taxes and higher taxes. Ah, freedom.

This reasoning could be applied to any act whatsoever, including mandating a religion (or even atheism)--as long as it's tied to congressional taxing power. (No doubt places of worship will be required to keep records of attendance at services, and to make those records available to the IRS upon demand so that miscreants can be fined.)

Here's how the reasoning in footnote 11 could be applied to a law mandating, say, Islam:
Individuals do not have a lawful choice not to pay a tax due, and may sometimes face prosecution for failing to do so.... But that does not show that the tax restricts the lawful choice whether to undertake or forgo the activity on which the tax is predicated. Americans may (i) choose Islam and pay higher taxes, or they may (ii) choose some other religion and pay lower taxes. The only thing they may not choose to do is (iii) embrace something other than Islam and (iv) not pay the resulting tax.
So that future generations would still have freedom of choice regarding religion: (i) choose (a) Islam and (b) lower taxes; or (ii) choose (c) something other than Islam and (d) higher taxes.

One can easily anticipate two obvious objections. (i) No one is talking about making people choose a religion. To which I reply: Yes. And When ROE v WADE was decided, Chief Justice Burger, wrote in his concurrence, "Plainly, the Court today rejects any claim that the Constitution requires abortions on demand." Burger may have been correct in January 1973, but not for long. Burger was entitled to his concurrence, but the opinion of the Court was written by Justice Blackmun, and that opinion made abortion on demand difficult to argue against. Right of privacy and all that. (ii) The Constitution does not explicitly prohibit Congress from making us buy things, while the First Amendment explicitly prohibits Congress making laws respecting an establishment of religion. To which I reply: PLESSY v. FERGSUSON, in which, with the sole exception of Justice Harlan, the Court managed to get round the 13th and 14th Amendments. More relevantly, SCOTUS has treated acts which do NOT establish any religion as if they do so. It will be quite easy, no doubt, to treats acts which DO establish a religion as if they do not do so, especially if they can be linked to the "public interest", the "commerce clause" and--le piece de résistance--the taxing power. And this will be true especially if the law requiring the choice of a particular religion is sufficiently popular, with both houses of Congress, and the Administration.

No, it wouldn't happen overnight, of course. But, two words: (i) Overton and (ii) Window.

It's no exaggeration to call this totalitarianism:
We should understand totalitarianism to refer not the severity of the regime, its propensity to use such tools as terror and concentration camps, but rather the scope of its purview. A totalitarian regime is one that seeks to control every aspect of communal life, and to bring as much of private life as possible into the sphere of the communal. ~ Herbert Schlossberg, IDOLS FOR DESTRUCTION, 222-23.
Not that this guy started it.

The famous footnote 4 in US v. CAROLENE PRODUCTS:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. 

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. 

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities, whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. 
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities, whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

About Me

James Frank Solís
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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