Steve G.

Posts Tagged ‘Constitution’

Constitutional Oaths and A Plea to President Obama

In Barack Obama, Corruption, Democracy, Democrats, History, Law, Libertarian, Libertarian Politics, Politics, Protest, Republican, US Government on January 30, 2010 at 1:25 am

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

This simple thirty-five word Oath of Office is specified by The Constitution of The United States as the one, single oath which much be taken by every person who will serve this nation as our President. After this oath is taken every four years, however, no one seems to ever pay much attention to it, but it is important enough that it is the ONLY oath spelled out word for word in The Constitution. There are also only two specific obligations it places on a President; to “faithfully execute the Office of President of the United States” and to “preserve, protect and defend the Constitution of the United States” to the best of their ability.

While no other oath is specified in The Constitution, it DOES state in Article VI, clause 3 that:

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

For other federal officials, including members of Congress, it specifies that they “shall be bound by Oath or Affirmation to support this constitution.” By federal statute, the oath which must be taken by all members of The House of Representatives and The Senate, as well as by The Vice President, members of the Cabinet, and all other civil and military officers and federal employees other than the President is:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

The taking of oaths by all other federal officials in addition to the President dates back to the fourteen word oath created by the first Congress in 1789 (“I do solemnly swear (or affirm) that I will support The Constitution of the United States.”), but the current wording is based more on the oaths written during The War Between the States which were intended to allow treason charges to be leveled against those who supported the south or didn’t support the Union.

The first Congress also specified in The Judiciary Act of 1789 the oath which would be required of all federal judges in the United States:

I do solemnly swear (or affirm), that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me, according to the best of my abilities and understanding, agreeably to the Constitution, and laws of the United States. So help me God.”

In fact, federal judges are currently required to take not just one, but TWO different oaths:

I, _____ _____, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _____ under the Constitution and laws of the United States. So help me God.”

And:

I, _____ _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Federal statute specifically states that this second oath “does not affect other oaths required by law.”

Within the military forces of The United States, the oaths required of both officers and enlisted men are statutory and are prescribed in Section 3331, Title 5 of the United States Code. The oath which officers are required to take is:

I, _____ _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

While enlisted men are required to take this oath:

I, _____ _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

An important distinction between the oaths required of officers when compared with that required of the enlisted ranks is that the oath taken by officers does not include ANY provision to obey orders. While enlisted personnel are bound by the Uniform Code of Military Justice to obey LAWFUL orders, officers in the service of the United States are bound by their oath to disobey ANY order that violates The Constitution of the United States.

As far as I can tell, these are all of the oaths required by our federal government for any person who is in any way obligated to serve The United States of America (I am obviously not aware of any secret oaths which might exist within the shadowy corridors of secrecy which our country tries to keep hidden from its citizens). I am also not including the oaths taken by the National Guard or officials of the various states, counties and communities as doing so could fill a small book, needless to say, all of those oaths must meet the same Constitutional requirements as these federal oaths do.

At this point you are probably wondering why I have spent almost a thousand words just to tell you want the different United States federal oaths are. It is very simple. OATHS MATTER! Whether we pay attention to them or not, our Constitution requires them and many people take them, which means MANY people are BOUND by them. Now, as you read through them, you might have noticed that there is only one thing which they ALL have in common (aside from all being very short). I’ll give you a minute to look back through them in case you haven’t noticed it yet.

Every single oath proscribed by or contained within The United States’ Constitution and/or federal statue, EVERY one, obligates the taker to preserve, protect, defend, uphold, support and/or administer justice agreeably to The Constitution of The United States, not the nation, not the people, not the business interests, not any person, concept, idea or entity other than THE CONSTITUTION itself. Furthermore, where any of the oaths mention enemies, it specifies enemies foreign AND domestic, ALL enemies of The Constitution, not enemies of the nation or the people but of THE CONSTITUTION. Thus, by my personal interpretation (and, I assume, that of everyone who demands a strict, literal interpretation of The Constitution), while the economy, national security, foreign, etc. are important concerns of our federal government, as provided for WITHIN The Constitution, the SINGLE most important duty of the President and every member of our federal government is to ensure the health of and obedience TO that constitution. ALL other considerations come after that one and NO duty or obligation is higher than it.

Every time I hear our President say that he “wants to look forward”, I want to cry. We cannot look forward or move forward by ignoring the past. What he is trying to do is build a wonderful new house upon a foundation that is very badly damaged. In such a case, it doesn’t matter how well you construct the house, it will not last because it must have a solid foundation. In fact, the bigger the house, the more important the integrity of the foundation is. Oaths matter, but so do the principles demonstrated by those who take those oaths. No matter what words we might choose, words are not actions and principles are demonstrated by our actions. A principle is only a principle if it is something you do even when it is difficult, inconvenient or could cause you, yourself, damage. If principles only required us to do things when they are easy or convenient, when there is no real cost associated with following them, then EVERYONE would be principled. Principles DO matter and what is shown to us by a person’s very real actions is what tells us what their principles truly are, not the words they tell us.

Therefore, I call upon Barack Obama, the 43rd President of the United States to uphold his constitutional oath of office and preserve, protect and defend The Constitution. I call upon him to repair the damage done to our constitutional government by past administrations and officials, elected and appointed. I call upon him to define what his powers are as President under The Constitution and to specifically repudiate those which are not consistent with the provisions of The Constitution, including the power to single handedly declare that he will not obey and uphold laws or treaties enacted by Congress simply because he doesn’t like them or to claim dictatorial powers to dispense with constitutional provisions (like habeas corpus, cruel and unusual punishment, right to speedy trials, legal advice and hearing all evidence presented against the accused.) upon his own whim. I call upon him to publicly repudiate the entire concept of The Unitary Executive and acknowledge the Constitutional invalidity of all exercises of such by ALL Presidents going back to the administration of Harry Truman. I call upon him to investigate and prosecute all officials and officers of The United States, in every branch and department of The United States who have ever done harm or damage to The Constitution, including by refusal to abide by legal and treaty obligations, up to and including war crimes committed within The United States and/or in the name of The United States by anyone in or working on behalf of The United States, up to and including former Presidents and Vice Presidents of The United States.

 To Mr. Barack Obama, 43rd President of the United States, I would like to personally say this:

Mr. Obama, I know that you were elected to be President of The United States for many reasons… our economy is bad and people thought you could fix it; our national reputation is tarnished and people thought you could improve it; we needed hope for the future rather than fear of it and people thought you could give that to us; and for so many other reasons both important and trivial. However, there were many people in this country, including me, who voted for you because our Constitution and our constitutional government have been horribly damaged over the course of the last eight years, if not over the last quarter of a century, and we believed that you could and would work quickly and aggressively to fix it, as well as to prosecute and punish those guilty of violating their own oaths to it and of doing harm to it.

No damage has EVER been done to our Constitution by any EXTERNAL enemies of our nation. Those who attacked us on Sept. 11, 2001 might have hurt our nation and killed our citizens, but they did not hurt our Constitution. The same is true of Timothy McVeigh and the bombing of the Alfred P. Murrah Federal Building on April 19, 1995. He attacked the people of the United States but he did not threaten or harm our Constitution. No external enemies of our nation ever did any damage to our Constitution in the 50s, 60s or 70s. All of that damage was done by domestic enemies who were attacking The Constitution from within… McCarthy, The House Un-American Activities Committee, J. Edgar Hoover, the Nixon Administration and many others. No damage was ever done to our Constitution by the Soviet Union or ‘international communism’ but rather by those Americans who thought that the Soviet Union was so dangerous that they had the right to violate our own laws as well as our Constitution. But in fear of communism, many threats to our Constitution result from the actions of our own Congress and administrations from Truman to Reagan. No foreign enemy has EVER harmed or even threatened our Constitution over the entire course of our history as a nation, but many domestic enemy have, and they have done so while wrapped tightly in the flag of and holding the symbols of The United States, going back to at least 1798 with The Alien and Seditions Acts. America may have been threatened many times in its history by enemies foreign and domestic, but no threats to our Constitution have ever come from external forces attacking us, they have ALWAYS come from our own internal rot.

I know it will be difficult to do. I know that it will cause political problems and turmoil. I know that it could precipitate a political civil war within this country. I know it would detract from other areas which you need to address, such as our economy. None of that matters however. The oath you took obligates you to do this. It isn’t a choice, it is a duty, and no one gets to pick which duties they will fulfill based on which ones are more difficult or unpleasant than others. Remember though, you are the person who is charged by the Constitution to execute the provisions of and laws according to it. In the end, your most important legacy will not be our economy, our wars, or our energy policies, or our healthcare system; those things are all transitory. In the end, your most important and lasting legacy will be what you demonstrate to the American people about what our Constitution and our constitutional government really mean. There is no one else, Mr. President, except you upon whose shoulders this duty falls. Please, do not let our nation, no, not our nation, please, Mr. President, do not let our CONSTITUTION down. I don’t think we can survive if you do.” 

Rhys M. Blavier

Romayor, Texas 

Truth, Justice and Honor… but, above all, Honor

© Copyright 2009 by Rhys M. Blavier

Why Redistricting is the Most Important Issue for Texas in the 2010 Elections

In Activism, Congress, Corruption, Democracy, Democrats, Fraud, Green Party, History, Libertarian, Libertarian Party-US, Libertarian Politics, Local Politics, Politics, Republican, US Government on January 20, 2010 at 9:31 am

What good does it do a man to have the vote if he has only one person that he can vote for?

All political power is inherent in the people and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.
Article III, Section 2 of the Constitution of the State of Texas

In 2011, the next Texas legislative session will tackle the subject of redistricting for the first time since Tom Delay and his partners in political crime forced the people of Texas to live with our incredibly gerrymandered map. Its purpose was to benefit the Texas Republican Party, harm the Texas Democratic Party and, as much as possible, remove the niggling little possibility that Texas voters might actually have the power to affect or influence the results of major elections here. Even the Democratic districts that were left were pretty much safe seats. Delay, Dick Armey and the rest of their merry little band of Machiavellis stuck their grubby little fingers into the mix and, like gods manipulating their computer game minions, succeeded in putting every voter in Texas into “political reservations”. No longer would the simple voter be allowed to mess up control of our state by dominant political machines. In short, what we have in Texas is Party-controlled government. In practical terms, the state of Texas and the two major Parties (preferably the Republican Party) would be (and are) the same thing.

Now, don’t get me wrong. I am not saying that political machines haven’t always been in charge of Texas (anyone remember Archer or George Parr, “The Duke of Duval County”?). It is simply that before the 1990s, they weren’t as obvious, and they didn’t really care about national influence. It was corruption by Texans, of Texans, for Texans. Any influence that could shovel federal money to us courtesy of our Congressional leaders like John Nance Garner, Sam Rayburn, LBJ, Jim Wright and all of the rest was still corruption by, of and for Texans. There was no intention or desire to tear the rest of the nation down or rip it apart as it seems like is happening now. The thing is, for corruption to flourish, the politicians must be able to promise that they will continue to hold power and maintain the corrupt systems. That is what we have now; entrenched Party corruption. This is why I believe that, regardless of the economic crisis, the healthcare crisis, the ethical crisis, the war crisis, and every other of the many crises faced by Americans, as a whole, and Texans specifically, the single most important issue for Texas voters in 2010 is: “What the Hell will our political districts look like now?

I love Texas. I really do. It is the land of my birth and, no matter how many times I leave it, it’s the land I always return to. Unfortunately, Texas politics often embarrass me. I am not alone in this. There is an old saying here that goes: “Lock up your house and barn; watch your wife and children. The Texas Legislature is in session and nothing is safe.” There are too many things in Texas politics about which to be embarrassed (if not to laugh out loud about in their ridiculousness), too many to list, or even count. Our state constitution, itself, is probably the main one; a document so badly written that the only thing which keeps it from being the single worst one in The United States is the fact that Alabama’s state constitution might actually be the worst one on the entire planet. It is easily the worst one in The United States (http://blavier.newsvine.com/_news/2009/04/06/2646073-we-must-amend-the-constitution-now-), but having the 50th worst constitution out of 51 contenders is nothing to be proud of. A close second to the embarrassment which is the Texas Constitution is arguably our propensity to re-elect incumbents to pretty much any office that they run for.

Texas is a land whose people pride themselves for their fiercely independent spirit. Texas is also a state which avows its hatred of the very idea of a professional political class so much that the annual “salaries” for all legislative offices (including that of the Lt. Governor) is only $7,200 (http://www.laits.utexas.edu/txp_media/html/leg/features/0205_01/compensation.html, http://www.tshaonline.org/handbook/online/articles/TT/mkt2.html). Keep in mind that it wasn’t until 1975 that Texas voters voted to raise those salaries from $4,800 up to $7,200… an increase of 50% (it was also at this time when members of our legislature were given a per diem AND could get mileage reimbursement at the same rate that state employees do). Texas government was designed to discourage the rise of a professional political class. Of course, in reality, it also keeps people without other sources of income (i.e. – the poor and the lower middle class) from being practically able to hold such offices. Thus, our fondness for keeping people in elected office is not only an embarrassment, it is rank hypocrisy on a statewide level. Now, I have so far basically said that we here in Texas have a “tendency” to re-elect the same people into government offices time and time again but, at this point, it is merely undocumented hyperbole. Fair enough. Go to the restroom, get yourself a nice beverage and make yourself comfortable because this is going to take awhile. Ready? Good.

(NOTE: If you are not interested in reading through the statistical information I have compiled, please feel free to skip the paragraphs between the two lines below and the two lines after the statistical paragraphs. The information in those paragraphs is included in this article (1) for those who, like me, find such information interesting, and (2) to cut off the need for comments such as “how do you know”, “what are you basing you opinions on”, and “prove it”. Thank you for your understanding on this.)

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To start with, here are some statistics about state level elections in Texas from the 2008 General Election:

The Executive and Judicial offices up for election that year were Railroad Commissioner, three places on the Texas Supreme Court (and yes, we actually elect our Supreme Count members which, of course, makes them political creatures who need to raise election funds instead of allowing them to neutral arbiters of the law) and two places on the Texas Court of Criminal Appeals (in fact, we elect ALL of our judges here). All seven of them were retained by the incumbents. For those of you who want to keep track, that is seven for seven, so far, or 100%.

For the Texas Congressional delegation, we had one U.S. Senatorial and thirty-two U.S. House seats up for grabs. It shouldn’t surprise you to know that for those seats, all thirty-three incumbents ran for re-election. Want to know how many of them won re-election? Thirty-two of them were sent back to Washington. One of the incumbent Representatives (a Democrat in his first term, if you want to know) was voted out. The score now is thirty-nine out of forty, which comes out to 97.5%.

In the Texas legislature, there were fifteen seats in the Texas Senate and all one hundred and fifty seats in the Texas House up for election. For the Senate seats, all fifteen incumbents ran. Five were re-elected and one was defeated. If you wonder about the other nine seats, don’t worry. For those seats, the incumbents were completely unopposed and, under Texas law, didn’t even need to show up to the actual elections because they are automatically declared the victors (Texas does not have a “none of the above” option for our ballots). Score, fifty-three out of fifty-five now, giving us an incumbent ratio of 96.4%.

For the Texas House seats, one hundred and forty-tw0 out of one hundred and fifty incumbents ran for re-election. After the primary results were in, nine incumbents had been defeated for nomination by their party. Five more were voted out of office in the General Election. One hundred and twenty-eight incumbents were then returned to the Texas House and, out of those one hundred and twenty-eight, seventy-four of those “won” their elections without facing any challenges by their major opposition party, which means that 49.3% of the total seats in the Texas House were filed by people who simply walked into the House unobstructed. This makes our incumbent win record one hundred and eighty-one out of a possible one hundred and ninety-seven (91.9%). With all of these Texas races, out of two-hundred and five elections, one hundred and eighty-one continued to be held by the person who held them before the election, which is a total ratio of 88.3%. (http://www.bipac.net/page.asp?content=texas_elections&g=TEXAS)

Now, let’s take a look at our candidate line-ups for the 2010 election cycle, shall we? Before we even start, I want to point out that, out of 219 races I have analyzed, only two, yes TWO, will have primary contests from all three parties (Democratic, Libertarian and Republican). Only 0.9% of the highest offices in Texas will have the nominees for each race selected from more than one contender in each party. Those two races are for the nominees of each party for Governor and for District 5 on the State Board of Education. Really! Take a moment to think about that. Out of all of the state’s Executive, Judicial and Legislative offices, only one will have three nominees who will actually be determined by the people. (NOTE: For the sake of accuracy, I want to point out that the Texas Libertarian Party selects its nominees by convention but, for simplicity’s sake, I will use the term primary through this article to indicate the need of any party to select its nominees from a slate of several contenders.)

The Texas Executive offices up for grabs this year are those of Governor, Lt. Governor, Attorney General, Comptroller, Land Commissioner, Agriculture Commissioner and Railroad Commissioner. Now, not only is the race for Governor the only Executive office in which there will be three nominees chosen by primary elections, the incumbent in the office of Comptroller (the State’s only financial officer after our elimination of the office of State Treasurer) is only going to be challenged because a Libertarian (our own Mary Ruwart) has filed to challenge the incumbent. The Democratic Party is not running ANYONE for the office. This means that if it wasn’t for the Libertarian Party, the person who is responsible for all financial duties for the entire state of Texas would be the guy who turned in his notarized form; that would have been all it would have taken.

On the Texas Court of Criminal Appeals, two of the incumbents are also only being challenged by Libertarians. For the eight seats on the Texas Board of Education, only three of the races have candidates from all three parties. Three of seats only have the incumbent party challenged by Libertarians, although the incumbents in all three of those seats do face primary challenges from within their own Party. The District 4 seat is only being sought by the incumbent… no challenges by either the Democratic or Libertarian Parties and no primary challenge, so he gets to simply walk in.

Neither of our two US Senate seats is up for election this year and, out of out thirty-two seats in the US House, all of the incumbents (20 Republicans and 12 Democrats) are seeking re-election. Of those thirty-two races, only the Republican and Libertarian Parties have candidates for all thirty-two. The Democratic Party only has candidates in twenty-four of those races (which means that one out of every four of these races, the Democratic Party isn’t even showing up for), and in one race, the Constitution Party also has one candidate running.

Of the thirty-two Congressional races, only twelve of the incumbents will face primary challenges from their own party (38%), nine Republicans out of twenty (45%) and three Democrats out of twelve (25%). Of the combined thirty-two races, the only challenges to seven of the Incumbents or the Incumbent’s Party are from Libertarians (22%), and one is from the Libertarians and the single Constitution Party candidate (03%), for a combined eight of the thirty-two seats… again, one out of every four. For all of the Parties, there are eleven Republican Party primaries (34%), five Democratic Party primaries (16%) and twenty Libertarian Party primaries (63%). Thus, out of a total of ninety-six possible primaries, there are thirty-six (38%) and, if you only count the sixty-four possible primaries for the Republican and Democratic Parties, there are only sixteen…which is, yet again, only one out of four. Out of THESE, there are only two races which will have primary challenges for all three parties (2.1%).

For the Texas State Senate, out of sixteen races, fifteen incumbents are seeking re-election (eleven Republicans and four Democrats). Of the sixteen races, the Republican Party has at least one candidate in all of the races, while the Democratic Party is only competing in eight of them, which (for those of us who can count) is only one out of two (50%). The Libertarian Party has candidates in nine of the races for a 56% presence. Of the incumbents running for re-election, only six out of fifteen (40%) face Primary challenges in their own party; four Republicans out of eleven (36%) and one Democrat out of four (25%… again).

In none of these races is there more than one candidate from any of three Parties facing a primary election… which is exactly 00%. In only one of the races (06%) are there two parties which will have primary contests. Out of a total of forty-eight possible primary contests there are only eleven (23%). This means that of sixteen possible primaries for each Party, the Republican Party has six (38%), the Democratic Party has two (13%) and the Libertarian Party has three (19%). For the General Election, only two of the races (13%) will have candidates from all three Parties, six (38%) will have only Republican and Democratic candidates, seven (42%) will have only one of the two major Parties (Republican or Democrat) running against a Libertarian candidate, and one (06%) will have a completely uncontested incumbent.

Finally we get to the Texas State House of Representatives with its one hundred and fifty seats at stake. 94% of the incumbents (one hundred and forty-one out of one hundred and fifty) are running for re-election. There are seventy Republicans and seventy-one Democratic incumbents running, which means that only nine of the seats are guaranteed to have a new person in them. The Republican Party is fielding candidates in one hundred and twelve of the races (75%), the Democratic Party is running in ninety-three of the races (62%) and Libertarians are contesting sixty-four of the races (43%).

Out of the one hundred and forty-one incumbents running, only twenty-three (16%) face primary races…sixteen Republicans (23% of seventy) and seven Democrats (10% out of seventy-one). Of the potential four hundred and fifty possible primary elections, there are only fifty-nine (13%), which is thirty-nine Republican primaries (26% of one hundred and fifty), ten Democratic primaries (07% of one hundred and fifty) and ten Libertarian primaries (again, 07% out of one hundred and fifty).

From all of the one hundred and fifty races, only twenty-seven (18%) have at least one candidate from all three parties. Twenty-nine of the races (19%) have only candidates from both the Republican and the Democratic Parties. Thirty-seven of the races (25%) only have one or more candidate from the Libertarian Party opposing one of the two major Parties. Of the one hundred and forty incumbents running, forty-six of them (33%) of them are completely unopposed (twenty-one Republicans out of seventy for a 30% ratio and twenty-five Democrats out of seventy-one for a 35% ratio). Out of the one hundred and forty-one incumbents running, eleven of the races have the incumbent’s party unopposed by candidates from either of the other two parties 08%). This includes six Republican contests out of seventy (09%) and five Democratic races out of seventy-one (07%).

Now, can you figure out what is the most horrifying statistic which can be made from the above paragraph? I’ll give you a couple of minutes to re-read it. {da da da da da dum} Have you figured it out yet? If it wasn’t for the Libertarian party, ninety-four out of the one hundred and fifty races for seats in the Texas House (63%) would have either the Incumbent or the Incumbent’s Party with no, let me repeat that, with NO opposition. Out of all of the two-hundred and nineteen total races in 2010 that I have broken down, that comes to one hundred and fifteen races (53%) in which there is only a challenge to an incumbent or an incumbent’s Party because of candidates from the Libertarian Party. Do you, like me, think that percentage is WAY too high?

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So, why have I written almost 2,000 words in eighteen paragraphs taking up most of three pages to numb you with statistics that barely a handful of people would even think about? Why have I spent most of my waking hours over two full days making myself blind(er) and giving myself a migraine to have these statistics to write about? It is very simple. Political districts in Texas are so frighteningly gerrymandered (http://en.wikipedia.org/wiki/Gerrymandering , http://www.thefreedictionary.com/gerrymander) that almost every seat for every state office in Texas (by which I mean, every elected office which has a specific political district that is smaller than the entire state… US House, Texas Senate and Texas House) is basically considered a safe seat for either a particular candidate or a particular political Party (http://en.wikipedia.org/wiki/Safe_seat) . They are considered so safe that few of them are challenged for and MANY fewer of them still are lost. That should be unacceptable to any person who believes in a democratic form of government.

Both the Republican and the Democratic Parties (especially the Republican Party over the last decade) have worked and legislated to not only make it infinitely easier to stay in office than it would be in a system in which voters have the true power over our government, they make it almost impossible for any new parties to challenge their political hegemony. Even if the two major parties hate each other, it is still in the best interest of both of them to keep the playground closed to other kids, as it were.

The Texas state Constitution makes these requirements for legislative districts (Article III, sections 25 and 26):

(25) “The State shall be divided into senatorial districts of contiguous territory according to the number of qualified electors, as nearly as may be, and each district shall be entitled to elect one senator, and no single county shall be entitled to more than one senator.

(26) “The members of the House of Representatives shall be apportioned among the several counties, according to the number of population in each, as nearly as may be, on a ratio obtained by dividing the population of the State, as ascertained by the most recent United States census, by the number of members of which the house is composed; provided, that, whenever a single county has sufficient population to be entitled to a representative, such county shall be formed into a separate representative district, and when two or more counties are required to make up the ration of representation such counties shall be contiguous to each other; and when any one county has more than sufficient population to be entitled to one or more representatives, such representative or representatives shall be apportioned to such county, and for any surplus of population it may be joined in a representative district with any other contiguous county or counties.

Now, take a look at (1) the current c0ngressional districting map for Texas (http://congdistdata.tamu.edu/USCongressionalDistricts.pdf), (2) The current Texas Senate districting map (http://www.laits.utexas.edu/txp_media/html/leg/features/0400_04/plans01188.html), and (3) the current Texas House districting map (http://www.laits.utexas.edu/txp_media/html/leg/features/0400_02/planh01369.html). You tell me whether or not you think that these districts are gerrymandered or if they meet the requirements of the Texas Constitution.*

[*By the way, when I was doing my Google searches for the Texas state government district maps, two of the results that popped up were “Dante’s Inferno – Circle 8 – Subcircles 1-6 – Cantos 18-23” and “Dante’s Purgatorio – Terrace 5: Avarice And Prodigality”. Do any of my readers find that as unbelievably funny as I do? Just curious.]

To have a functioning democracy, it isn’t enough to have the right to vote. We must also have both a selection of candidates from which to chose AND the power to determine who WE want in office rather than who the Parties want. Right now, for all practical purposes to be a candidate for any of the offices which I have covered, you must have all of your paperwork in the hands of the Texas Secretary of State on the first business day of January. This allows candidates to be listed on the ballots in time for the state primary elections. Parties like the Libertarian Party have to use conventions to determine their nominees which use a slightly different schedule than the primary schedule, but the filing deadline is the same.

So, what is it about our elections, as described by me up to this point, which rob voters of power over our elections? First, there is no opportunity for citizens to see which races do not have any competition and then work to raise more candidates. This means that even the two major Parties are stuck with whoever met the filing deadline. Second, while minor Parties (Libertarian, Green, etc.) have to use a convention method to choose their candidates, those candidates STILL have to have their paperwork filed by the January filing deadline. This means that the convention delegates can ONLY “choose” candidates who met the filing deadline. They have no opportunity to control the process and, except in elections when they have more than one member of their party to choose from, are stuck with whoever had their paperwork in on time. There are processes to declare a write-in candidacy or to get on the ballot as an unaffiliated / Independent candidate, but are not practical means in the state of Texas to give the voters more choices or options besides those who handed in a notarized form by the first business day after New Year’s.

To truly be in control of who represents them in their governments, the process has to be designed to remove the power of the Parties over the process. We need districts which are completely non-partisan and politically neutral. We need to make it easier for more candidates to get on the ballots. We need enough candidates running for every office that all of the Parties will need to actively campaign to win their Party’s nomination in the primaries and conventions before they campaign for the actual office. We need to examine different methods of voting which put control of the outcomes in the hands of the electorate. (http://blavier.newsvine.com/_news/2009/04/21/2714028-the-laboratory-of-democracy-alternative-voting-methods-approval-voting-re-edited) We need to reduce the costs of filing for office by independents and others who do not have the backing of a Party which has ballot access, and of running a campaign for office. We also need to remove the bureaucratic barriers which make it difficult to even be on the ballot.

The thing is, if we were to solve all of the issues which I have raised, we will end up with better people in office. While many people complain about the lengths and costs of campaigns by candidates for the office of President, there is one good benefit of the process, which is that it hones a candidate’s skills and message, AND gives the press time to learn more about the candidates than the candidates might want us to know. Winning an election to become the President of The United States does not make a candidate a victor, it makes them a survivor. The other main benefit to the voters making changes to our election process is that we will end up with officeholders with a wide range of beliefs, skills, and knowledge. Diversity is not found in the color of someone’s skin, their gender or their sexual orientation; it is found when you have people with differing beliefs working together to create our laws and operate our governments. Homogeneity of ideas is the worst enemy of true diversity.

As much as people of any particular ideology might think that having people holding the same ideological beliefs as they do in every office would create a perfect government, they are wrong. Good decisions are not made when everyone agrees; they are made when people with differing beliefs can work together and challenge each other to make the best decisions. (http://blavier.newsvine.com/_news/2009/06/11/2918292-groupthink-as-a-political-mental-illness-part-i, http://blavier.newsvine.com/_news/2009/06/15/2933680-groupthink-as-a-political-mental-illness-part-ii) I recently ran across a blog, called ‘Divided We Stand, United We Fall’, which has apparently been around since 2007. It has some very good stuff in it but I want to point my readers to a particular article on that site (http://westanddivided.blogspot.com/2007/07/curing-libertarian-political-impotence.html).

This is why I say that the SINGLE most important issue for the Libertarians in the 2010 election is the redistricting which will be done by Texas (and the other states) in 2011. Unless we can literally change the political map next year, we will simply spend another decade as a fringe party which has no REAL impact on our laws or on the operation of our government. This is the case that the Libertarian Party needs to be making to the citizens of Texas, as well as to voters all across The United States. We need to make sure that the voters in every district know that, while they have no power to determine who gets elected by voters in other districts, they can still have an impact by choosing to send Libertarians, in those districts which have Libertarian candidates, or people of differing ideologies that the current prevailing ones as their representatives in Austin and in all of the other state capitals. NONE of many problems can be fixed if we don’t have the best people in office to work on them. If we cannot make them understand the importance of redistricting as a way for THEM to have more power over those in political office, then we will fail them. Voters may get the “government that they deserve” but, if we can’t give them real choices about who they can vote into office, they will never have to opportunity to deserve a better government.

For more information, please see http://texaspolitics.laits.utexas.edu/6_printable.html.

Rhys M. Blavier
Romayor, Texas

Truth, Justice and Honor… but, above all, Honor

© Copyright 2010 by Rhys M. Blavier

Thank you for reading this article. Please read my other articles and let me know what you think. I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our government and how we can build upon and improve it based on what we have seen and learned over the course of the 225 years of The American Experiment.

The American Vice Presidency… Graveyard of the Constitution

In Congress, Democracy, Democrats, History, Law, Libertarian, Politics, Republican, US Government on August 27, 2009 at 7:12 pm

America’s first Vice President, John Adams, described the office as “the most insignificant office that ever the Invention of Man contrived or his Imagination conceived”. When Daniel Webster was offered the nomination of Vice President, he said “I do not intend to be buried until I am dead”. Perhaps the most succinct assessment of the office was given by Texan John Nance Garner, a former and powerful Speaker of The House of Representatives and Vice President under FDR for two full terms, who claimed that the office wasn’t “worth a bucket of piss”.

In many ways, the office of Vice President of The United States can be seen as the most singular indication of the noble goals and yet practical failure of The United States Constitution, and its fate was sealed before the 19th Century even began. While there might have once been a chance for the Vice Presidency to have been an office of viable contribution to the functioning of The United States’ government, there are five key moments in early American history which, I believe, combined to relegate the office itself to impotence and insignificance only moderated by either the good will of any particular President or by the vacation of the office of President and subsequent elevation of a Vice President to that office. The first of these moments was the creation of the office itself (1787).  The idea was that it would be held by a major statesman, the candidate for President who came in second and who would, for the greater good of his nation, join the administration of the victor.  Yet within this idea was still recognition of the reality of opposition and the understanding that you would not want to give the primary challenger of the President any real power with which to work against the Chief Executive.  Thus was an office created in which the primary requirement was, apparently, to have a pulse. 

While, primarily because of their revolutionary credentials, Washington’s Vice President, John Adams succeeded him as President, and then Adams’ Vice President, Thomas Jefferson succeeded him, the office of Vice President has not been seen as a natural stepping stone to the Presidency.  After Jefferson, and after the adoption of the 12th Amendment to The Constitution (which provided for the direct election of the Vice President) the only Vice Presidents who have been elected to be President WITHOUT FIRST having already assumed the office through the death or resignation of the previous holder of that office have been Martin Van Buren (1836), Richard Nixon (1968), and George H. W. Bush (1988).  Furthermore, of those three men, Richard Nixon was not the current Vice President when he was elected, having lost to John Kennedy in 1960.  Thus, the two men after Jefferson who were elected to the office of President while holders of the office of Vice President served only two terms between them for a total of eight years, and the three men combined for 4 terms and less than 14 years out of the whole of the history of The United States.  By contrast, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams and James Buchanan (the 3rd, 4th, 5th, 6th and 15th Presidents) all served as Secretary of State and served as President for eight terms and a total of 32 years, while several others served as Ambassadors or envoys to other sovereign nations.  So, we can see that diplomatic credentials have been seen as better qualifying a candidate to be President than serving as Vice President has been.

The second moment in history’s conspiracy to insure the insignificance of the office of Vice President was George Washington’s view that the office was a part of the Legislative branch of the government rather than part of the Executive branch (1789). As a result, Washington not only did not include Adams in his cabinet meetings or consult him very frequently on matters within the Executive Branch. He believed, in fact, that he was not ALLOWED to do so as part of The Constitution’s requirements for separation of powers. It is impossible to minimize the influence Washington had on establishing the precedents and operational functions of The United States government as established by The Constitution. If any man in history had it in his power to make from nothing a relevant constitutional office of the Vice Presidency, it was Washington; but he did not do so. As aware as the Revolutionary generation was that they were making history, they seemed to have had no awareness of the importance of the precedents which they were establishing every day as part of a continuity of history which would last for centuries.

In many ways, they were making it up as they went along and the openness of the Experiment they had initiated would have permitted them to follow almost any vision that they could have put into practice.

The third moment in this sorry tale was the decision of The Senate to forbid the Vice President from being part of the debates and deliberations of their body (1789). We can never know how much of this decision was inspired by the personal rancor and dislike felt by many members of The Senate for the person of John Adams and how much was an inevitable course which would have been followed no matter who had been The Senate’s first presiding officer.

In the end, it makes little difference. While Washington did not consider the Vice President a member of the Executive Branch, The Senate did not consider the officeholder a contributing part of their august body or, therefore, of the Legislative branch of government. While a man with more people skills and a more stable temperament might have been able to make the Senators accept the Vice President as a full member of The Senate, John Adams was not that man. As Adams wrote to his wife Abigail, “It is to be sure a punishment to hear other men talk five hours every day and not be at liberty to talk at all myself, especially as more than half I hear appears to me very young, inconsiderate and inexperienced.” If Washington had made the Vice President insignificant as a member of the Executive branch, The Senate itself made him insignificant as a member of the Legislative branch. All of this, of course, reaches new heights of irony in the person of our former Vice President, Dick Cheney, who has used this ‘confusion’ to declare himself the beneficiary of the rights and privileges of both branches while, at the same time, free of the obligations or restraints upon either branch. The burden of the fourth moment in our tragic history of the establishment of the role of the Vice Presidency falls squarely on the shoulders of the second holder of that office, Thomas Jefferson (1797).

Adams, for all of his faults of personality, truly cared for what was best for the nation he served. He did not plan to treat Jefferson, as Vice President, as he had been treated himself (or, as Tom Lehrer put so humorously in his satirical song about Hubert Humphrey and the treatment of Humphrey as Vice President by Lyndon Johnson as President, “I’ll do unto you as they did unto me.”).  As Joseph Ellis tells so well in his Pulitzer Prize winning book ‘Founding Brothers, Adams fully desired to work with Jefferson to create a bipartisan administration which utilized both of their talents and skills (Chapter Five: The Collaborators). 

He wanted Jefferson to be a functioning member of his cabinet and an active participant in foreign policy efforts. Jefferson, influenced greatly by the advice of James Madison, chose to be a party man and watch the Adams administration fail without him. Jefferson, at this time, chose the good of his party over the good of his nation. After Adams’ desire to give the office a ‘place at the table’, it wasn’t until Warren G. Harding took office in 1921 that a President again made the choice to include his Vice President in his cabinet meetings, and it wasn’t until Richard Nixon’s service under Dwight Eisenhower that a Vice President was given a substantial and public role by the President but, in all cases, up to and including the present, the role and power of a particular Vice President has been dependent upon their President to give it to them.

If the damage done to the office of Vice President was not already irreversible by the election of 1800, that election itself ensured that it was permanent, and the blame for it can be placed on the personage of Aaron Burr. If one wants to make the case that the Adams’ Vice Presidency was not a standard to judge by because of the newness of the office, or that the Jefferson Vice Presidency cannot be used because he was of an opposition political position to his President, then there is no excuse for the damage done to the office by Burr before he was even inaugurated, damage so great, in fact, that the first substantive change to The US Constitution was made to prevent the circumstances from ever again even being possible through the adoption of the 12th Amendment. For the election of 1800, the supporters of Jefferson and his Republican / Anti-Federalist movement conspired to maneuver the election so that their candidates would end up holding the offices of both the Presidency and the Vice Presidency. While they succeeded in the goal of having all of their electors vote for both Jefferson and Burr, they apparently never considered the ramifications of this actually happening. They believed that somehow, without any need to orchestrate it as well, some random elector would cast his vote for Jefferson but not cast their second vote for Burr. The conspiracy, however, was too well planned and the soldiers followed their marching orders without deviation…and Jefferson and Burr ended up exactly tied in the electoral vote totals.

At this point, a good party man would have fallen into line and worked to finish what had been started, but Burr was an opportunist whose personal desires completely overshadowed any belief he may have had in the greater good. When the election went to The House of Representatives, Burr fought to win the Presidency for himself. He almost managed to pull the feat off as it took 36 ballots in The House before Hamilton intervened and one member chose to abstain. Well, after that, what President would trust the man he was stuck with as Vice President? And so, Burr alienated himself from any role in Jefferson’s first administration and The Constitution was changed…and changed VERY quickly.

The new nation went through only four elections, three administrations and 12 years before the first substantial flaw in the design of the governmental structure of The United States had to be addressed. 46 men have been dumped into the graveyard of The Constitution, including 2 men who each served under two different Presidents (George Clinton under Jefferson and Madison, and John C. Calhoun under John Quincy Adams and Andrew Jackson). Except for the ones who eventually became President themselves or who have served in a person’s own lifetime, how many people can name even one of them? The Vice Presidency is a unique office with a unique role in government. If we want evidence of the lack of experience which burdened the men who created The Constitution, all we need do is look at the Office of The Vice President of The United States. However, if we do look at it, we will have done more than most people ever do.

P.S.– It might also be of interest, for anyone who wants to consideration how truly UNimportant the office of Vice President has been to our nation over the entire course of its history, for me to point out that, while we have never had any real period without a President since Washington first took the oath of office in 1889, between the years 1812 (when the office was vacated upon the death of Vice President George Clinton) and 1974 (when the office was vacated by the elevation of Vice President Gerald Ford to the Office of President) (a period of 162 years), there were 18 different times when we were without a Vice President totaling more than 426 months (35.5 years, an average of 23.666 months per vacancy). This includes two periods when the office was vacant for 47 months (out of a 48 month term of office), but does NOT include any periods when the holder of the office just left Washington and ignored his role in government (as, for example, Richard Mentor Johnson did during Van Buren’s administration).

As an indication of how little impact the absence of a Vice President has meant to the functions of our government, I would simply ask how many of you reading this have ever even wondered just how often the office has even been vacant because there WAS no holder of the office?

As a point of useless trivia from an infomaniac, did you know that the first Vice President to die in office (George Clinton) died about a year before the end of his second term (Clinton had served one term as President Jefferson’s second Vice President and his second term as Vice President was consecutive to his first when he was elected to be Vice President under Jefferson’s successor, President James Madison, for Madison’s first term.  For Madison’s second term of office, he ran and served with Vice President Elbridge Gerry, who THEN proceeded to die in office after about a year and a half into his term.  As a result, President James Madison served with a different Vice President for each of his two terms in office and neither of them lived to complete their own terms.

Rhys M. Blavier
Romayor, Texas 
 

Truth, Justice and Honor… but, above all Honor

© copyright 2008 by Rhys M. Blavier
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Thank you for reading this article. Please read my other articles and let me know what you think. I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our government and how we can build upon and improve it based on what we have seen and learned over the course of the 225 years of The American Experiment.

How I Think The Constitution Can Be Fixed (Part III [c]: Article I – The Legislative Branch)

In Congress, Democracy, Democrats, History, Law, Libertarian, Libertarian Politics, Politics, Republican, US Government on June 15, 2009 at 12:53 pm

Section 6, paragraph one deals with Congressional compensation for their services.  Many years ago, Congress enacted standing legislation to provide them with regular pay raises UNLESS Congress, at the time of EACH particular raise, actively raises the issue and votes against it.  This is one of the examples I was referring to when I talked about how Congress makes what will be their path of least resistance be what benefits them, rather than the people.  Thus, if Congress does NOTHING, is silent and doesn’t even raise the issue, they get their raise each year.  In ADDITION, they get unbelievable pensions based on how long they served as well as life time healthcare.

To me, this is another simple issue to deal with.  Tie the salaries of ALL federally elected officials to the median incomes of the American people, not counting bonuses or other backdoor ways of hitching things a little higher for them. Based on the real and reported income of all citizens who file income tax reports, divided by ALL citizens, let’s say that (as a starting point for discussion), members of the House would receive an annual salary based on what 60% of the median incomes of all Americans equals to, with Officers of The House getting 62.5%.  Members of The Senate would get a salary based on 65% of the median income, with Senate officers getting 67.5%.  Members of the Supreme Court would get 70% of the median, with The Chief Justice and The Vice President getting 72.5%.  Finally, the highest salary allowed would go to The President, with the salary of that office being based on the 75% of the median incomes of all Americans.

Now, I want everyone to notice something.  I did NOT say that these salaries should be based on mean, or AVERAGE incomes (the total of all incomes divided by the total number of people), I said that they would b based on the MEAN incomes.  The mean is a statistical average based on the individual numbers which are ranked from highest to lowest.  Thus, Bill Gates is only one statistical number, while a disabled elderly person who has an annual income of $5,000 is another individual number equal to Bill Gates.  A median average would give a much more accurate picture of how much average Americans earn and tie the salaries of Constitutional and elected Federal officials to that average.

So, what would THIS accomplish?  Several things; for one, it would make elected Federal officials more caring about how much money the American people have because their own welfare would be improved by having more people earning (and reporting) higher incomes.  In fact, the more income earned by those at the bottom quarter, half and three-quarter marks of the social ladder, the higher the income they would make themselves.  For another, it would increase their focus on eliminating loopholes which allow people to underreport their own incomes. The fiscal conservatives tend to support theories which state that there is a finite amount of REAL income (as opposed to, say, capital income) which is available.  Thus, to raise the income levels of those at the lower ends of the social ladder would mean that the additional monies would have to come at the expense of the earnings of those at the top of the social ladder.  For yet another thing, the more money earned by AND KEPT by corporations and businesses is money that is NOT increasing the income levels of the bottom three-quarters of the income bracket.  This would make Congress more likely to support higher individual wages and eliminate more corporate loopholes.  Again, the more money earned by the most people would benefit them personally… and if the incomes of average Americans goes down, so does theirs.  We would all swim or sink together.  Their pay rates would be worked out and modified every two calendar years to coincide with election cycles.

As for pensions and permanent healthcare, I do not believe that people should make holding elective or political offices their primary livelihoods.  I am against, as I have said before, a professional political class.  I believe in the founders’ idea of people who would make sacrifices in their own lives of short periods of time to serve their nation with their public service and would then go back to their public lives.  Thus, ANY elected official, or any official who is subject to Senate approval would not earn ANY pension or retirement benefits for their time in service.  Regarding members of The Supreme Court, I will deal with them in the part(s) of this article which deal with Article III of The Constitution.

Section 6, paragraph two is the one that says that no Senator or Representative can hold another civil office in The United States during their tenure in their respective House, and that no officer or official of The United States can serve as a Senator or Representative while they hold their other office or position.  This, among other things, is what prevents us from having a Parliamentary system of government and ensures that the membership of each branch of government will be totally and completely distinct and separate from the others.  It also says that:

No Senator or Representative shall… be appointed to any civil office under the authority of The United States which shall have been CREATED, or the Emoluments whereof shall have been Increased during such time [as they served as a Senator or Representative]…”

THIS portion of The Constitution does need to be addressed to clarify, one way or the other, what authority the Executive branch does or doesn’t  have to appoint sitting or recently sitting members of Congress to other civil positions … especially with automatic pay raises being provided for all such civil offices.  Either our Constitution very specifically prohibits this and it is accepted by all members of our government or we change it.  I personally would rather leave it as it is and expect our government to abide by such limitations.

Well, I think this is a good place to end this part of this article.  When we come back, I will address the rest of Article III, including legislation to raise revenue, the budget, and the enumerated powers and authorities of Congress.

(This article will be continued in Part III [d], which will continue discussing Article I of The Constitution.)

Rhys M. Blavier

Romayor, Texas

Truth, Justice and Honor… but, above all, Honor

© Copyright 2009 by Rhys M.  Blavier

_______________________________________________________________________________________________________________

Thank you for reading this article.  Please read my other articles and let me know what you think.  I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our government and how we can build upon and improve it based on what we have seen and learned over the course of the 225 years of The American Experiment.

How I Think The Constitution Can Be Fixed (Part III [b]: Article I – The Legislative Branch)

In Congress, Democracy, Democrats, History, Law, Libertarian, Libertarian Politics, Politics, Republican, US Government on June 11, 2009 at 1:52 am

From Article I, Section 3, paragraphs six and seven, the portions of the provisions for either House regarding impeachment require no changes other than possibly the provision that the threat of and right to impeach is a constitutional DUTY of Congress and it cannot surrender its willingness to implement that duty when it is called for.  To do so is malfeasance in the performance of their constitutional duties and should subject any members of Congress who are willing to agree to surrender their willingness to fulfill ANY of their obligations and duties under The Constitution.

Section 4 of Article I deals with the times and places of elections of Representatives and Senators, and with the requirement for Congress to meet at least once every year.

I think that the provisions for periods of adjournments and recesses by Congress are not appropriate to our modern day government.  For those who argue that they do not want Congress in session any longer than it has to be, while I don’t entirely disagree with them, I think the larger and more important issue is how just adjournments and recesses empower the Executive branch as the expense of the Legislative branch.  While I will deal more with such things as ‘recess appointments’ in the part(s) of this article which deal Article II of The Constitution (The Executive Branch), I am against ANYTHING which serves to make the Legislative branch less than equal to the Executive branch, much less subservient to it.  Thus, I think that Congress should never be considered in recess and only be adjourned by standing legislation which provides for pre-defined periods of adjournment, focused around legal federal holidays (not religious holidays) and, say, a single one week-long adjournment each  quarter of the year… each one, preferably centered around an appropriate federal holiday each quarter.  At ALL other times it would be required to be in session (and remember, I would not allow for any member of Congress to hold office for more than a single term, so there would be no NEED for Congress to be in adjournment during election cycles).

Section 5 deals with various procedural matters (such as judging their own elections, the power to compel attendance by absent members, and the prohibition against adjourning for more than three days while in session).  Paragraph two deals with allowing each House to punish and/or expel its own members.  It also states that each House shall determine its own rules for proceedings.  Paragraph three covers the requirements of each House to keep a journal of its proceedings ad periodically publish those journals, as well as the requirement of each House to record the ‘Yeas and Nays’ (i.e. – the votes) of each House and to publish those totals for either House upon the request of one-fifth of the membership of that House.

While The Constitution should not get into the minutia of establishing all of the rules for either House, there are some which I think it would be appropriate to enact, enshrine and enforce within The Constitution.  Among these are:

1.)   No office created by either House of Congress can be specific to any particular political party.  While any party can choose to elect its own leadership by whatever methods it wants, it does not mean that those elected to such offices are deserving of extra pay by the nation or extra privileges and powers within Congress for holding an office restricted to the members of that Party.

2.)  All officers elected by either House should be selected by secret nomination and secret ballot.  I would also recommend the use of Approval Voting for the actual elections.  Again, this would be to try to help break the stranglehold on power which any party holds simply by having more members that any other party.  This provision would probably result in most offices being held by less extremist party loyalists.  If our nation can succeed in establishing a viable third-party, it will throw the current methods of selecting Congressional offices in the toilet anyway.  Let’s do what we can to speed that process up a bit.

3.)   All ballots casts by members of either House should be cast in secret and the individual results of any vote kept but only revealed (published) 25 years later for historical purposes.  Now, I know that this one is going to be met with shock by most people.  After all, how else are we supposed to keep tabs of what these people actually do?  Well, stop and think about this one for awhile.  Let me explain my reasoning for this idea.  Why do WE cast OUR ballots in secret?  So that no one WILL know exactly how we voted which, among other things, limits to ability of anyone else to threaten or intimidate us.  Open balloting in Congress does not help ‘we the people’, it helps the parties, lobbyists and special interest groups keep members of Congress in line with what benefits THEM the most, not what benefits us the most.  Open balloting in Congress allows the political parties, the lobbyists, the special interests groups, the media and, yes, even the people to threaten and intimidate individual Congress who might otherwise have the will to vote their according to their conscious as they believe is right rather than how others want to compel them to vote.   This is also one of the major ways that the two parties effectively prevent other viable parties from having a voice in our system of government (the other major way that they accomplish this is by the maintenance of our current Majoritarian / Plurality election system). (Please see my earlier article on ‘The Laboratory of Democracy — Alternative Voting Methods (Approval Voting) [Re-edit]’ for a more detailed explanation of this idea.)  It is also what allows small groups of extremists to move the politics in Congress in extremist directions and which makes moderate or centrist positions untenable to maintain.

With a provision that, in an investigation, a select independent committee can review specific votes and make them public IF they show evidence or a pattern of corruption, malfeasance or negligence, but also with a protection provision that baseless accusation for no purpose other than to discover what a personal voting record is will be a felony, this provision could provide safety and protection for those legislators who do want to go along with their party’s line on any particular issue.  So, how is a member of Congress judged if their individual votes are not known?  They would be judged in two ways. First, they would be judged by what they say on the record and, second, they would be judged by what their House accomplishes or FAILS to accomplish.  Under this method, ALL members of a House are collectively responsible for what that House does or doesn’t do… they rise or fall together.   This means that their motivation which change to being how can they work together to make them all look good.  Just think about it for awhile, ok?

4.)  Right now, most legislation includes meaningless introductions which tell us how wonderful it is and how it will single-handedly make the world a better place to live (and they are capped off with some kind of sensationalist title which will make those who vote against it sound like they are bad Americans for voting against it… especially those who don’t actually read the proposed legislation that they are voting on.  I believe that ALL legislation proposed and voted on in either House of Congress should include measurable and quantifiable goals, and specific objectives to indicate what will be considered a successful result of the legislation.  Goals and objectives, strategies and tactics.  I also believe all legislative objectives should include a time frame by which the legislation must accomplish its goals or it will automatically cease to have legal standing.  This is not a meaningless point.  The example I like to use has to do with Civil Rights legislation.  Under the legislation as written, neither side of the debate has an actual motivation to see the objectives of the legislation accomplished.  Each side uses it as a weapon with which to attack the other, and leaders on both sides have built their power bases upon the on-going conflict it engenders.  There is more political power to be gained by keeping the conflict going than there is in accomplishing its purposes.  Now, imagine if that legislation had included measurable, definable and quantifiable goals AND it had an objective of accomplishing those goals in, say, 25 years.  One way or the other the legislation would end; the only question would be “when” it would end.  Those who are fighting for the achievement of those civil rights would have been motivated to make sure that the goals were achieved before the end of the 25-year deadline so as to get them in place, and the side which was not in favor of the penalties and restrictions imposed by the legislation would be motivated to accomplish those goals as quickly as possible so that the legislation would go away as quickly as possible.  In either case, if the goals were either not achieved or led to the consideration of additional goals, new legislation could be crafted and proposed at that time which would better meet the needs of that time and that generation.  The purpose of this proposal is to give ALL sides reasons to work together to accomplish things rather than give them reasons to fight against each other endlessly.

To justify why this should be import, keep in mind all of the calls by the people and politicians for, and interpretations by the courts based on what the ‘intention of the founders’ was.  Intention is difficult to know, and impossible to speculate on to determine law when those intentions are never officially, and reliably set forth and documented.  The fact that the founders destroyed all OFFICIAL minutes and notes from The Constitutional Convention can only leave us with one of two ways to make such judgments; either the founders did not WANT us to base our interpretations and decisions based on what THEY intended (which means that we do, in fact, have a LIVING Constitution), OR, they did not understand how important it would be to us to be able to discern their intentions when we try to interpret what they intended.  We need to not only insure that the present generation fully understands what we are trying to do and what we want to accomplish, we need future generations to understand why we felt each specific law was necessary… our intentions, in other words.  Goals and objectives would make legislation easier to interpret and less likely to be twisted and MISinterpreted by other.  It would also allow those who read a law thoroughly to see if the actual content and execution of the law is true to its goals and objectives.

5.)  That idea leads us to Thomas Jefferson’s theories of generational laws.  He said “[B]etween society and society, or generation and generation, there is no municipal obligation, no umpire but the law of nature. . . . [B]y the law of nature, one generation is [therefore] to another as one independent nation to another.”  He also said “Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.” (http://www.conlaw.org/Intergenerational-II-2-9.htm) I believe in the idea of generational laws (with all laws having a natural expiration deadline of either 25 or 50 years (generations being longer now that they were when Jefferson wrote that, and some laws being more important than others), depending on the law, with 25 being the norm and 50 being the exception, for several reasons.  First, laws seem to work conversely to the adage that it is easier to destroy than it is to build.  With law, it is easier to pass one than it is to get rid of one.  When politicians or officials come along later and try to have a law removed from the books, the tendency is to wonder what ulterior motives they ‘really have (no matter how bad or irrelevant the law might be) and political inertia tends to win.

As a result, our legal systems end up cluttered with an unbelievable number of laws which are either (a) no longer of any value, (b) no longer in sync with the progress of our culture or, (c) just plain stupid.  A generational law standard would mean, first of all, that no one would have to actively campaign or fight to have laws actively removed piecemeal.  By doing nothing the laws will just go away.  If they still have value or there is still a need for them, they can be re-written and passed again. Secondly, the future will not be bound by considerations or standards of the past which no longer apply to them.  Thirdly, politicians are, by nature, egomaniacs who want to be immortal, and the way a politician becomes immortal is by sticking us with their own ideas of how we should live (i.e. – with laws).  When all of the basic laws are already in place, they have to go farther and farther to find their own immortality.  I would rather have them continually working on and improving basic legislation than to have them spending their time finding cruel and unusual ways to torment, punish and control ‘we the people’.

6.)  I think that all of us, all of us who are not in Congress, at least, would agree that the Legislative Amendment process is out of control and all too easily abused by politicians who cannot get their own moronic ideas passed into law on their own merits; or who want to ‘game the system’ by attaching bad legislation to other legislation that, itself, cannot be voted down.  Riders and amendments are a bane to good legislation which can be (a) understood, (b) respected, and (c) followed by everyone.  This would be simple to deal with.  Any amendment or rider which has nothing to do with the primary legislation AND / OR which does not have the support of the primary author of the legislation (not sponsors or co-sponsors, the primary author) can only be attached to the proposed legislation by a super-majority vote of two-thirds of the House in which it has been proposed in.  Any rider or amendment which does relate to the primary legislation AND has the support of the primary author can be attached if it gets a majority vote in the House in which it has been proposed.  Note: these votes would NOT be to approve the amendments or riders, only to allow them to be attached to the primary legislation before IT was voted on.  For those who want the President to have a line item veto authority, all that would have to be done here would be to say that he has the power and authority to approve or veto the results of such votes before they can be attached to the primary legislation (as provided for in Article I, Section 7, paragraph four of The Constitution).

7.)   Congress has made themselves exempt from abiding by the laws that they force on the rest of us.  This is one of the (many) reasons why it is so easy for Congress to hypocritically impose legislation on ‘we the people’ that is harsh or intolerable… because THEY don’t have to also live with the consequences of their decisions.  This blanket exemption needs to be removed and, any individual exemptions that they want to pass for themselves should be stated publicly, be required to undergo a full and open debate, require a two-thirds super-majority of BOTH Houses AND be subject to Presidential  vetoes for which it would take a three-fourths super majority of both Houses to override.

8.)  As in all things, politicians will take the paths of least resistance.  If their path of least resistance in legislation is to maintain the status quo by not voting for something, they will do that.  Conversely, if they have to actively vote for the status quo to maintain it, they will let it change.  As an example of what I mean by this, consider automatic Congressional pay raises.  Those raises will automatically take place unless Congress actively votes to stop them.  Thus, the path of least resistance is to maintain the status quo by doing nothing and, as a result, allow the raises to happen.  If the legislative process required on-going legislation to require active votes to keep it going, and the path of least resistance is to not vote for something (like the pay raises), they will not vote for them and they won’t happen.  The direction of how Congress votes for on-going legislation needs to be changed so that the path of least resistance is what benefits ‘we the people’ and not what benefits Congress or the government.

(This article will be continued in Part III [c], which will continue discussing Article I of The Constitution.)

Rhys M. Blavier

Romayor, Texas

Truth, Justice and Honor… but, above all, Honor

© Copyright 2009 by Rhys M.  Blavier

_____________________________________________________________________________________________________________

Thank you for reading this article.  Please read my other articles and let me know what you think.  I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our government and how we can build upon and improve it based on what we have seen and learned over the course of the 225 years of The American Experiment.

How I Think The Constitution Can Be Fixed (Part III [a]: Article I – The Legislative Branch)

In Congress, Corruption, Democracy, Democrats, History, Law, Libertarian, Libertarian Politics, Politics, Republican, US Government on June 1, 2009 at 1:35 am

Congress, The Legislative Branch of The United States of America was, as ‘the people’s house‘, intended to be the most powerful of the three branches of government created by The Constitution… a ‘first among equals‘, as it were.  Of the 4,543 words of The Constitution, the 2,312 words of Article I constitute just over half of the total (50.89%).  Unlike Article II (The Executive Branch) and Article III (The Judicial Brach), Article I deals very much with the actual workings, duties, powers and authorities of Congress.  A primary reason for this, I assume, is that the founders had a long history of experience with operating a working, functioning Congress or Legislature.  They also had more trust of a strong legislative branch than they did of a strong executive branch.

The first representative legislative body established in the American Colonies, in fact, in ANY of the British Colonies, was Virginia’s House of Burgesses, which was created in 1619… 170 years before the creation of Congress under The Constitution.  Before and during the Revolutionary Period, ALL of the American Colonies had functioning state legislatures and, at the national-level, the first Continental Congress had been called in 1765.  Under the Articles of Confederation, Congress ran the nation with a VERY weak Executive, who was appointed by Congress itself to preside over ‘A Committee of The States‘.  The delegates to the Constitutional Convention well understood what a legislative branch could do, although, prior to The Constitution, members of Congress for any state were appointed by the legislatures of that state.  As such, apportionment by census and direct elections of the members of The House of Representatives was their great experiment with a representative legislature.  Members of The Senate, of course, continued to be appointed by each state’s own legislature until the passage of Amendment XVII, which was ratified in 1913 (although some states had been providing for the direct election of their Senators by the people of those states as early as 1907).

It was never the intention of the founders to create a permanently ruling political class.  They envisioned men, who would, for a short period of time, leave their private lives, take up the burden of public service for the good of the nation and then go back to their private lives.  This idea was only one of many visions of theirs that did not survive our national transition from our ‘first generation‘ to our ‘second generation‘ [see ‘Part I‘ of this article for an explanation of my theory of the first and second generational effects].  Many Americans have the mistaken belief that the founders created a two-party system.  This is patently false, but still many of our children are taught it.  The founders tried to create a NO-party system, with the idea that individual members of Congress would band together is short-lived coalitions for each separate issue that came before them.  This is another idea which not only did not survive our nation’s first generation; it did not survive the Washington administration.  This is probably the biggest reason that party politics dominates our government, because The Constitution did not provide any guidelines for or controls / limitations upon them.

Several of my suggested changes will be attempts show how I think that we can restore the founders’ original concept of public service to our government, and show a way to end or, at least, make it more difficult for the continuation of our professional and permanently ruling political class.  These suggestions will be made to try to minimize the amount of time elected officials have to spend in their continuous cycle of staying elected, to maximize their learning curve and effectiveness in office, and to reduce their susceptibility to the corrupting effects of long-term office holding.  They will also have a goal of wanting to breaking the stranglehold which the two major parties have on our government, at all levels, as well as minimizing the power and effect which those at the extreme ends of any political spectrum have on our government.  This is crucial if we are to return our government to a rational level of moderation.

As a general change for ALL elected offices, no one would be allowed to campaign for one office while they are holding another.  If people think that such an allowance is necessary, they could be allowed to run for as MANY offices at one time as they want, but they have to be campaigning on their own time (they, of course, could only accept election to one office if they should win more than one election at the same time… if they do win more than one, though, maybe they should have to pay for any special elections which they necessitate by winning an office they have intention of serving in).  Since all elected officials are elected to serve their constituents by doing a specific job, and not to spend their time on that job trying to keep their current job or trying to get a new one at our expense, once a public office holder is officially a candidate for any national office (the point at which they start raising funds or operating a campaign), they will be REQUIRED to immediately resign any elected office, at ANY level, that they might hold at that time.  This would also help keep the lengths of campaigns down to more reasonable amounts of time as elected officials would be less likely to give up an office in their hand too long before they run for the office in the bush that they want to seek.

Section 2 of Article I lays the groundwork for the composition of The House of Representatives.  Paragraph 1 of Section 2 sets the term of office for members of the House of Representatives at 2 years.  I would change this to 6 year terms, with one third of The House being elected every three years and a one term limit.  This would allow an on-going House with regular turnover and without the turmoil of having to elect ever member of The House and recreating itself every election cycle.  Former Representatives could be elected to additional terms by the people of any particular state that they have served when they have been out of The House for the length of a full term between each term.

Paragraph 2 sets the minimum age for eligibility for election as a Representative at 25.  I would lower this to 20, although with the requirement that being a Representative is a full time job (i.e.  – if someone is a student and is elected, they would have to leave their studies for the duration of their term of office).  We allow citizens to vote at age 18, we let them serve in our military, we require them to pay taxes (which they have to do at ANY age when they earn any money), etc., there is no reason that citizens of that age should not be allowed to elect Representatives of their own age range if they are able to.

Paragraph 3 of Section 2 deals with apportionment of Representatives among the various states.  As we have seen all too frequently, the abilities of modern computing to pinpoint every voter has given the supposedly forbidden practice of gerrymandering an even more frightening and insidious power than it has had in a long time.  That same computing power can allow us to create congressional districts that are of the most compact size and even shape as possible without ANY regard to the politics, or any other discriminating factor, of the citizens of any particular district.  Every state has corners and edges.  All that would have to be done is to program the same computers to start at each corner and create evenly shaped and compact districts as they work in towards the middle of each state.  Alternatively, the first district could start in the middle of a state and work outward.  This would still allow for differing proposals, depending on starting points and merging points, but the test would still be which proposal presents the most precise and evenly shaped districts possible.  Basically, if districts can be created within a smaller or more compact area of a state, you go for the most compact districts possible.  This would not only prevent the parties from manipulating districts in the way that is most advantageous to them, it will prevent them from creating both ‘safe‘ districts (which protect members of either party), and ‘reservation‘ districts (which isolate and limit ethnic voting power overall to specific limited areas).

Paragraph 3 also provides for the total number of Representatives the House.  Its original provision of “The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative;” has been modified by legislation passed in 1911, which capped the total number of Representatives in The House at 435.  One man, one vote‘ was NEVER an intention of the founders (as seen by their plan of equal apportionment of Senators, the guarantee of at least one Representative from each state, and the fact that Congressional districts must be fully contained within their home state) because it was never their desire to allow high population areas to dominate the government at the expense of the rural areas by the simple fact of having more people.  However, it was also not their intention to let rural areas have excessive power by limiting the numbers of Representatives to be divided among the more populous states.  As was seen when Alaska and Hawaii entered the union (the total number of members in Congress was temporarily increased by one for each state UNTIL the next apportionment, at which time it was returned to the 435 Representatives level), the current total is seen as a hard and fast one which is not increased by the admission of additional states.  As a result, with each shift in population and a theoretical continuous expansion of the numbers of states in the Union, the single Representative for the states with the smallest population increase in their own proportional power within Congress.  To counter this, I would propose that the total number of Representatives be equal to ten times the total number of states.  This would mean that every time a new state is admitted, ten Representatives will be added to the total number of Representatives in The House.  Right now, that would result in a total of 500 Representatives, with 50 being taken by guaranteed representation for each state and the other 450 apportioned according to state population sizes.

Paragraph 4 deals with vacancies within The House while Paragraph 5 creates the office of Speaker and allows for The House to create and choose its other officers.  The only change I would make here is that ANY officer of The House (or The Senate) has a responsibility to the nation, as a whole, as well as to their own district’s constituency.  As such, ALL officers of The House or The Senate, from any party, must equally accept feedback, requests, petitions, etc.  from anyone within the nation as they do from anyone within their district.

Section 3 of Article I deals with The Senate.  Paragraph 1 sets the length of term for a Senator at six years.  As with the House, I would increase the lengths of their terms of office to twelve years, with a limit of one term and the passage of a length of time equal to one full term before they can be eligible to run again within their state.  For those of my readers who have caught some of my specific wordings, by the way, these limits would only apply to a candidate in a single particular state if they want to run again in that state.  If someone thinks that they can just pack up and move to another state to get elected again, they would be welcome to try it.  I would love to see the spectacle of hordes of former Congressmen moving constantly between states while trying to convince the voters of their ‘new‘ home states that they are not carpetbaggers who are only looking out for themselves rather than for the citizens that they purport to serve.

Paragraph I also sets the numbers of Senators from each state at two.  I would increase this to three for each state so that every state will have an election turnover of one Senator for every equal third of a term (i.e.  – every four years), which is what is dealt with in Paragraph 2.  Paragraph 3 sets the minimum age of a Senator at 35.  As with The House, I would lower this age by five years to 25 in order to increase the chances for better representation of the younger population of the nation.

Paragraph 4 of Section 3 deals with the role of The Vice President as the President of The Senate.  While I will deal with the larger issue of the office of Vice President when I discuss The Executive Branch, the primary constitutional duty of a Vice President is to be President of The Senate.  This office needs to be a functional part of our government.  [Please see my article on ‘The American Vice Presidency…  Graveyard of the Constitution’.]  While I would still give The Vice President no vote in The Senate except in cases of ties, I would give the office political power in The Senate equal to that of The Speaker in The House.  I would also give The Vice President the freedom to address The Senate under the same rules as any Senator, but with the provision that they must temporarily give up the Presidency of The Senate while speaking on the floor, and maybe with the additional restriction that they must ask the permission of The Senate to be allowed to speak to it from the floor.

Paragraph 5 of Section 3 provides for the creation and selection of other officers for The Senate, including The President pro tempore.  My biggest issue with how Section 5 is fulfilled is that The President pro tempore, the third person in line to the office of President of The United States, has become a meaningless ego job which is simply given to the oldest, most senile member of the majority party.  This Constitutional office needs to be held by the person elected by the whole Senate to be its Floor Leader.  Tell me, honestly, would you have wanted to see a 99 year-old Strom Thurmond succeeding to The Presidency?  What about an 84 year-old Ted Stevens?  Or a 92 year-old Robert Byrd?  The President pro tempore should be the Senator who is leading the legislative agenda on the floor of The Senate, not the one singing ‘I’m a Little Teapot‘ with the Spectre of Death.

 

(This article will be continued in Part III (b), which will continue discussing Article I of The Constitution.)

Rhys M.  Blavier
Romayor, Texas

 

Truth, Justice and Honor… but, above all, Honor

 

© copyright 2009 by Rhys M.  Blavier
_________________________________________________________________

Thank you for reading this article.  Please read my other articles and let me know what you think.  I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our government and how we can build upon and improve it based on what we have seen and learned over the course of the 225 years of The American Experiment.

HOW I THINK THE CONSTITUTION CAN BE FIXED (Part II: The Preamble)

In Activism, Congress, Constitutional Rights, Democracy, History, Law, Libertarian, Libertarian Politics, Military, Politics, US Government, War on May 26, 2009 at 8:00 am

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

At 53 words (1.15% of the total words in The Constitution), The Preamble to The Constitution of The United States is, not counting any of the Amendments, the shortest section of The Constitution after Article VII (Ratification). It has never, to my knowledge, ever been used as a basis for any constitutional court case, or for any decision (majority, dissenting, or separate) made by The Supreme Court. The Preamble is essentially considered to be the ‘pretty words’ before the ‘actual’ Constitution. That is kind of like seeing it as a short, light poetry reading for entertainment purposes before the start of the ‘real business’ part of the program. I think that such a view is a tragic mistake.

First of all, The Preamble is fully a part of The Constitution, written with it and subjected to the same ratification process as every other part of The Constitution was. It is a shame, at best, and short-sighted, at worst to not give it the same respect and standing as every other part of The Constitution. For example, for the hawks and for those in the Bush administration, it provides the best justification in the entirety of The Constitution for their aggressive military views and focus on defense issues (“We the People of the United States, in Order to…, provide for the common defence). In my view, the ‘Commander-in-Chief” clause (which I will talk about in my part of this article which will deal with Article II – The Executive Branch) does NOT give the Executive Branch the power or authority that it wants to claim under that clause. Their best arguments can be made using the relevant words in The Preamble.

Unfortunately, for those same hawks and those conservatives who are against progressive social policies, if they want to use the ‘common defence’ wording of The Preamble upon which to build a case, they must also concede equal standing to all of the other provisions of The Preamble. To me, The Preamble is an active part of The Constitution which establishes objectives which our government under The Constitution is obligated to strive to try to achieve. I will discuss this idea in more detail in the part of the article which will deal with Article I (The Legislative Branch) but, briefly goals and objectives are the same as strategies and tactics. Objectives / tactics are the broad, general, rather nebulous overarching purpose of something which cannot be quantifiably measured or ever be truly achieved… we will make the world a better place, we will create a more perfect union, we will explore space, we will end sickness and disease, etc.… these are all objectives. You cannot measure them, you cannot quantify them, you can ONLY work towards them. What helps you work towards achieving your objectives / tactics are your goals / strategies. Goals / strategies are the specific, quantifiable and measurable and specifically achievable progress points which are established as as ways to help us achieve our objectives / strategies … we will reach the moon by the end of the decade, we will give the vote to eighteen year-olds, we will defeat Hitler, we will wipe out smallpox, etc…. these are all goals.

For my section on the Legislature, I will advocate, and give my rationale for making goals and objectives a specific part of the legislative process. For this section on The Preamble, I will simply say that it is where I see the founders listing the objectives which they wanted us to work towards. To me, this makes The Preamble one of the, if not the, single most important parts of the entire Constitution. All that WE need to do is pay attention to it and give it the same respect and standing that we give to any and every other part of The Constitution.

The lack of consideration given to The Preamble is yet another shining example of what I see as the base hypocrisy of those who cry and scream that The Constitution needs to be read literally and without interpretation (the second part of which is, of course, impossible) but do not practice what they demand. The Preamble is just as much a part of The Constitution as any other part is. It was subjected to the same ratification procedure and cannot be changed without such changes going through the same amendment procedure as any other changes to The Constitution would have to go through.

The only change that I would make with regards to The Preamble would not be to change any of its words, it would be to change what respect and legal standing we give those words among our other laws and constitutional provisions.

Rhys M. Blavier

Romayor, Texas

Truth, Justice and Honor… but, above all, Honor

© copyright 2009 by Rhys M. Blavier
________________________________________________________________________________________

Thank you for reading this article. Please read my other articles and let me know what you think. I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our government and how we can build upon and improve it based on what we have seen and learned over the course of the 225 years of The American Experiment.

HOW I THINK THE CONSTITUTION CAN BE FIXED (Part I: The Problem)

In Activism, Civil Liberties, Congress, Constitutional Rights, Corruption, Courts and Justice System, Democracy, Democrats, First Amendment, Human Rights Abuses, Law, Libertarian, Libertarian Politics, Politics, Republican, Second Amendment, US Government on May 20, 2009 at 7:12 am

I have said many times over many years that I think that The Constitution of The United States is broken.  I have recently been asked to give specific examples of what I mean when I say that.  This is, of course, a very fair question to ask.  To answer it, however, I will both give some background information to help explain WHY I feel the way I do on this subject (which is the topic of this first part of this article) and, as I don’t think that it is helpful when people say what they think is wrong with something without actually offering any possible solutions to the problems that they see, I will also provide specific examples of WHAT I would specifically suggest to fix these perceived problems (which will be the topic of the second part of this article). I will do this by primarily suggesting how I think specific aspects or parts of The Constitution can be improved to better accomplish the goals of the founders.  Now, with my suggested changes, I will not be offering specific wordings for those changes.  I believe it would be pre-mature and a poor process to do so within the scope of this article.  I think that that there needs to be some agreement first about what changes should be made, then establish specific goals and objectives for those changes, as well as agreement on why a specific change should be made and what its purpose would be, and THEN, work on the actual wording to be forever enshrined in The Constitution.  For me, then, to actually propose specific wording changes at this stage in the process would be pre-mature.  In addition, I am rather… verbose… and I personally think that such wording needs to be as concise as possible.

Let me start by telling my readers why this topic interests me and why I feel I am qualified to write an article on this subject.  When I was a 16-year old kid in high school, I was able to get involved in several college student organizations at Texas A&M University.  This was a very unique period at A&M in the mid-1970s, which is what made this possible.  As a high school kid, I was still an outsider in those groups.  This allowed me to be an observer of the organizational group dynamics.  In one of the organizations, after I had been in it for a couple of years, there was a huge internal crisis which literally tore the organization apart.  This was the first time I ever got to experience what I came to call the ‘second generation effect’.

It was for this group that I wrote my first constitution, a 25-page thing that no one ever got to see because when I had completed it, it was stolen before I could present it.  In retrospect, it probably wasn’t very a very good constitution, although I do not have a copy I can read to verify that.  What writing it began for me, however, was hobby of designing fictional organizations and writing constitutions for them that lasted well over a decade.  I would do this in the same way that some people do crosswords or jigsaw puzzles and, to me, the process was, and is, very much a logic puzzle.   Along the way I have written five to seven actual constitutions for real organizations and, because of what I watched happen in those groups I was part of while I was in high school discovered a desire to help other people create better organizations themselves. I eventually earned a Master’s degree that would allow me to work as a student activities / college union professional, which also provided me with the means to collect constitutions from all kinds of organizations from many different locations to study.  This has allowed me to see many commonalities, both good and bad, among those documents and helped me to formulate a guiding philosophy for designing and writing constitutions for ANY organization.  That philosophy is:

You can NOT, by definition, plan for the unexpected… but you are a damn fool if you do not prepare for the predictable.

In case anyone is interested, by the way, I think that my next project along this line will be to try to incorporate a city in the unincorporated area in which I live and try to create an actual ‘laboratory of democracy’.

The second generation effect is when an organization which has been created by people with a common understanding of why they created the organization themselves begins to have people who were NOT part of the organizational creation process reach a level where they begin to have a greater controlling influence on the organization than those who did create it.

When an organization is created, those who created it usually have a common understanding of the principles and processes they expect the organization to operate by.  Because of this mutual understanding, they are generally very minimalist about what they put into the organization’s founding document(s) or constitution because they think that more is unnecessary for the very fact that all of the original members have a consensus about those principles and procedures.  As a result, they leave those principles and procedures unspecified in the organization’s founding document(s).  Even where these people have differences with each other, they are actually bound together by their mutual understandings about the organization.  They simply don’t see how others who will come along later will not share those bonds and will not view the organization in the same way that they do.  This is what results in constitutions and founding documents which are what I classify as the ‘we create this group, and we will do things and we will be friends’ category of constitutions and founding documents.  This is also what I call the ‘first generation effect’.

So, why are the ‘first generation’ and ‘second generation’ effects important concepts when talking about our Constitution?  It is very simple.  I think that the founding fathers operated under the first generation effect when they wrote The Constitution.  Their common experiences with the separation from Britain, The Revolutionary War, and The Articles of Confederation created a common bond which unified them on a subconscious level.  Even with their many disagreements and differences, they were still bound to each other by what they had experienced in common with each other.

This period saw one of the most remarkable collections of great men and great minds in one place and one period of time in all of human history.  I still can’t figure out if history gave us this moment and gathering of mental giants, or if the moment and gathering of mental giants gave us history.  Which one is responsible for the other, I frequently wonder?  The result of their gathering in Philadelphia in 1787, The Constitution of The United States, is an amazing and awe-inspiring document.  In fact, I think that it has single-handedly shaped where the world has moved since it was created more than any other single document, philosophy, event, or person since then.  The downside of what they did in Philadelphia is that they had no other real historical examples which they could study, other than their experiences under The Articles, to see what would work and what wouldn’t.  They pretty much only had theories and ideas to use.  They also came up with a minimalist document that left much more unwritten and which would rely on their common understandings with which to fill in the gaps than it actually specified about the operation of the new government which they were creating.

In 1991, I was hired for my first job as a Director of Student Activities at a small, private liberal arts college in Illinois.  At this time, the Student Activities Board was an unconstituted committee of the school’s Student Forum.  I decided that the SAB needed to be a separate organization with its own constitution and I created a committee of students, faculty and staff to help design the organization and help write it’s constitution.  The Forum’s advisor was also the school’s government teacher and ‘expert’ on the U.S. Constitution.  One day, in passing, she stopped me and asked why the document I was trying to create needed to be as long as it was.  After all, she pointed out, the U. S. Constitution was only 4,543 words long (honestly, I remember it with her saying it was only 1,458 words long, which is the length of The Declaration of Independence and not of The Constitution but I will give her the benefit of the doubt by assuming she said the correct total).  I responded by telling her “Yes, and it isn’t a very well written document.  She got very angry and, without allowing me to explain to her what I meant, she stormed off.  She never again spoke to me civilly and I was terminated at the end of the school year WITHOUT getting my SAB constitution ever publically discussed or voted on, much less passed.

When I said that The Constitution was not a very well written document, I meant no insult to it or to the great men who wrote it.  I meant simply that they didn’t have the advantages of history which we have upon which to base their document.  NOTHING is ever as good as it can be on a first attempt (look at how much better The Constitution was than The Articles were), and distance is needed to see how things work (or don’t work) as desired, and what can be done to improve it.  I think that this is a necessary evolutionary process in any long standing organization.  I also never got to explain to her my theory of the second generation effect or how I think it illustrated the fundamental flaws in the document.

I think that there are many reasons that more things were not spelled out better in The Constitution.  One of them was the first generation effect of common understanding and fellowship.  Another was that the Federalists, under the leadership of Alexander Hamilton, did not WANT things to be spelled out better so that they could use the ambiguities of the document to argue that it said and meant things that it clearly didn’t.  As is common in history, those of a more liberal ideology will concede things to their political opponents in order to create a consensus while those of a more extreme conservative ideology will simply take those concessions as wins for their side and an indication of weakness for the other side, and will then proceed to try to use that point as a baseline from which to further advance their cause at the expense of those they oppose.  A defining characteristic of a liberal personally is individualism and efforts to strive for common agreement and consensus, while a conservative personality is more commonly seen as wanting unification among those who agree with them for the advancement of their agendas, suppression of individual internal disagreement and accumulation of power for their group.  (Please look for a future article to be written by me on the subject of groupthink, conformity and shame theory to further explain this claim.)

By the 1820s, the first generation of those who created our American constitutional government was mostly gone from the scene and the second generation was in control.  As I have personally seen in all too many smaller organizations, the second generation, not having had a hand in giving ‘birth’ to an organization does not feel limited by the voluntary constraints by which the members of the first generation operated.  A key aspect of the second generation effect is the rise of members who are more interested in their personal power than in the greater good of the organization.  These power-seeking second generation members will also look for weaknesses, flaws, loopholes, omissions and ambiguities within the governing procedures and document(s) of an organization to see how they can be utilized to advance their personal power or parochial interests at the expense of the greater good of the entire organization.  I also do not know how to test it, but I theorize that it is the very weakness and flaws in an organization’s founding documents which ALLOW the second generation effect to occur.  The better that things are clarified, and potential problems identified and provided for, the longer an organization can go on with unity and consensus.  I believe that it is the failures of the first generation to study more closely when they create their organization and better provide for potential problems in the future within their founding documents that is the cause of the second generation effect, and not the fault of those in the second generation.

In American constitutional government, this was seen in the rise of a professional political class; party politics holding dominance in the elected branches of government; party and regional (state) concerns being held as being more important by those elected officials than the greater good of the entire nation; and a desire for gaining and using personal power bases in order to control the functions of government at the expense of those who do not help the person wielding that power.

One last aspect of the generation effects is a blurring of the lines between and the convergence of common misunderstandings of the differences between and meanings of both ‘power’ and ‘authority’.  Contrary to common belief, the two ideas do not have the same meanings and, in fact, are completely separate concepts from each other. This is why they are both used together… power AND authority, like assault AND battery.  Authority is the RIGHT to do something.  Power is the ABILITY to do something.  While power and authority might reside together in some cases, it is much more common to have an exercise of POWER by a person or group who do not have the AUTHORITY to do what has been done, or a group or person who has the AUTHORITY to do something but does not have the POWER to accomplish the desired action (much like when the Supreme Court ruled against Andrew Jackson regarding the Cherokee Indian treaties with The United States and Jackson, supposedly, commenting in response that “John Marshall has made his decision, now let him enforce it.”)  Andrew Jackson, Henry Clay and John Calhoun are all classic examples of second generation personalities.

Part II of this article will deal with the actual flaws, weaknesses and omissions which I see in our Constitution and my personal suggestions for correcting them.

 

Rhys M. Blavier

Romayor, Texas

Truth, Justice and Honor… but, above all, Honor

© copyright 2009 by Rhys M.  Blavier
________________________________________________________________________________________

Thank you for reading this article.  Please read my other articles and let me know what you think.  I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our government and how we can build upon and improve it based on what we have seen and learned over the course of the 225 years of The American Experiment.

The Corporate ‘Person’

In Constitutional Rights, Corruption, Courts and Justice System, Democracy, Economics, History, Law, Libertarian, Libertarian Politics, Politics, Protest, US Government on May 11, 2009 at 6:51 pm

Nowhere are corporations mentioned in The Constitution of the United States of America.  The Constitution was 32 years old before the Supreme Court even dealt with its first case regarding a private, for-profit corporation (Dartmouth College vs. Woodward, 1819) under the contracts clause of Article I, Section 10 (“No State shall…  pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.”).  It was the conservatively activist court of the period following the War Between the States which changed the landscape of corporate law in the United States with a dictum by Chief Justice Morrison Waite in his opinion on Santa Clara County vs. Southern Pacific Railroad (1886) stating that corporations were ‘persons’ as meant by the Equal Protection Clause of the 14th Amendment (…  nor shall any State deprive any ‘person’ of life liberty, or property without due process of law; nor deny to any ‘person’ within its jurisdiction the equal protection of the laws.)

 

Between 1890 and 1937, VERY activist courts that were VERY conservative and pro-business weakened the ability of employees, customers, state legislatures and labor unions to challenge the power of corporations in the United States.  Even under more liberal courts, corporations have been given additional rights of ‘persons’, such as with 1978’s National Bank vs. Bellotti decision which protected corporate ‘political speech’ under the 1st Amendment.  In all ways, corporations in the United States are legal ‘persons’ under The Constitution which means that, in The United States, certain stacks of signed documents are the same as, and have the same rights under the law as any living, breathing flesh and blood ‘person’ does.  Isn’t it time to challenge the legal and logical fallacies of this position?

 

A human ‘person’ is born.  You can say that a corporation is born, also, but a corporation does not go through a childhood or minority in which it is raised and educated before it is given rights and powers of equal standing with an adult.  There is no consideration of childhood for a corporation and yet for a human person, the importance of childhood cannot be minimized.  Children can be required to attend school and be subjected to curfews that do not apply to adults.  Children are restricted in purchasing or using things with which they might harm themselves or others through restrictions which do not apply to adults (alcohol, tobacco, guns, etc.).  Children cannot legally gamble or enter into contracts.  Children can be restricted from accessing information which other adults can freely access (pornography and restricted movies are two examples of this).  Children cannot vote and their rights of assembly can be limited.  Children cannot work or earn their own money except as specifically provided for by law.  Childhood places very real restrictions and limitations on human ‘persons’ before they are given all of the rights and privileges of an adult.  In addition, under The Constitution, there are even further restrictions on age…  no ‘person’ can be elected to a Constitutional office until they have the achieved the age of 25, 30 or 35 (depending on the particular office).  Corporations have no equal burdens placed upon them; rather they enter the world as full adults, like Venus rising out of the sea in a shell or Athena springing from the head of Zeus.

 

A human ‘person’ is responsible for their own actions.  A human ‘person’ who breaks a law and is brought before a court to answer to justice will be the one who pays a fine or goes to jail.  Felons also have restrictions placed upon them for the rest of their lives.  A corporate ‘person’ cannot be jailed.  A corporate ‘person’ can also just make changes in their management or their Board of Directors and make a claim for leniency or exception which a human ‘person’ who is sane cannot make…  It wasn’t us, it was others, and they aren’t here now”.  Such a claim made by a human ‘person’ would be considered proof of very real and very serious mental illnesses.  While individuals who work for a corporation can be held accountable for some of their actions (keep in mind, the purpose of incorporation is to shield individuals from personal liability or accountability to the public), a corporation itself cannot be imprisoned.  Further, while a corporation might be fined or otherwise punished by a court, the people who made decisions can go elsewhere and continue as they have.  Like a coach of a team which is sanctioned by the NCAA, if the coach can just get a job elsewhere, the sanctions don’t follow him.  Corporations can further shield themselves by creating other corporations which they own and control but which protect the greater corporation from financial or legal liability.

 

A human ‘person’ has duties to perform in their society.  A human ‘person’ can be called to serve on a jury as provided for in The Constitution.  A human ‘person’ can enlist in, or even be conscripted into a military service and sent to die for their country.  A human ‘person’ can run for political office to help fulfill the needs of leadership of their governments at all levels.  No corporate ‘person’ is capable of fulfilling the obligations or duty of service to their country of an individual.

 

A human ‘person’ dies.  How long can a human ‘person’ be part of the workforce?  How long can they provide for themselves and make their own decisions?  How long can a human ‘person’ keep death at bay?  While a corporation might go belly up, or be bought or just end by a decision of those at the top, a corporation, a corporate ‘person’, has no natural lifespan and can, in principle, go on living forever…  maybe a restructuring here and there or a name change but, none-the-less, the same legal ‘person’.

 

The logical case against considering corporations to be ‘persons’ could fill a book, however, there is also a legal flaw which should be addressed within the Constitutional framework of accepting corporations as ‘persons’…  a ‘person’ can’t be owned in the United States.

 

The idea of corporations as ‘persons’ was ‘found’ by the Court in the 14th Amendment.  If the 14th Amendment makes them ‘persons’ under The Constitution, doesn’t the 13th Amendment also apply to them?  (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”)  Now, go to any dictionary you can find and look up, in order, slavery and slave.  I’ll wait.

 

No ‘person’ can own another ‘person’ in the United States.  Therefore, if a corporation IS a legal ‘person’ under the protection and jurisdiction of The Constitution, doesn’t that mean that they can’t be owned, and that they cannot own other ‘persons’ (i.e.  — other corporations).  If The Constitution applies to the Corporate ‘person’, doesn’t that mean that the WHOLE Constitution applies to them?

 

Rhys M.  Blavier

Romayor, Texas

Truth, Justice and Honor…  but, above all Honor

 

© copyright 2008 by Rhys M.  Blavier
_________________________________________________________________

 

Thank you for reading this article.  Please read my other articles and let me know what you think.  I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our government and how we can build upon and improve it based on what we have seen and learned over the course of the 225 years of The American Experiment.

The Laboratory of Democracy — Alternative Voting Methods

In Candidate Endorsement, Civil Liberties, Congress, Constitutional Rights, Democracy, History, Law, Libertarian, Libertarian Politics, Local Politics, Politics, Presidential Candidates, US Government on May 1, 2009 at 9:22 am

“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Supreme Court Justice Louis D. Brandeis, Dissenting Opinion: New State Ice Co. v. Liebmann (1932)

The above quote from Justice Brandeis’ famous dissent is the origin of the idea of ‘the laboratory of democracy’. This is an idea with much merit but which we have, unfortunately, not seen utilized within The United States to any kind of a significant degree. Whether through fear of losing power, fear of interference from the federal government, lack of imagination, lack of interest or fear of the unknown, ‘experiments’ with democracy in this country take the shape of trying to impose different sets of laws and rules upon the citizens rather than on the process by which those laws and rules are determined. The idea in this nation is that differences in democracy are measured solely by the end result of the legislative process rather than the process itself.

A large problem with mankind, in general, and Americans, in particular, is our hubris. We think that, because we are as far along as mankind has ever been, we are the end of the road and have to have everything right. What we should keep in mind is that we are just another middle age. As we express shock, disgust, and amusement at the attitudes, beliefs and lack of knowledge of the world of a thousand years ago, so will mankind view us a thousand years hence. We will not fail the future if we don’t have everything right; we will fail them if we don’t try new things to give those who come after us additional data which they can use to get closer to being right than we ever can.

I try to occasionally write articles under the Laboratory of Democracy umbrella to look at different ideas which might be worth experimenting with (if not at a federal level then perhaps at a state or local level) to see how our idea of constitutional government can be improved based on lessons learned from our own 225 years of history conducting the American Experiment. Today’s topic is about how we can change how we conduct voting to better represent the views, needs and desires of ‘we the people.’

The reasons to change the way we vote are numerous. A fundamental reason to change it is that Americans tend to vote AGAINST candidates rather than FOR them. We have shaped the idea of democracy into an expression of our personal fears. We seem to feel stronger about candidate’s who we DON’T want in an office than we do about those we support. Usually this is perfectly understandable, as the candidates we have to choose from are often not that good, so it is often easier to identify candidates who are LEAST in line with what we want than it is to identity ones whom we can wholeheartedly support.

One obvious problem with this method is that when people are primarily voting AGAINST a candidate, they are afraid to ‘waste’ their vote by casting it for someone who they might approve of but who has no actual chance of winning. This fear of ‘wasting my vote’ was intensified after the 1992 Presidential election saw a significant number of votes cast for Ross Perot (who supporters of losing candidate George H. W. Bush blamed for costing him his bid for re-election) and after Al Gore’s narrow loss (or win, whichever you consider it to have been) to George W. Bush in 2000, which was partially blamed on those in Florida who had voted for Ralph Nader. Aside from the fact that no candidate is ever OWED any citizen’s vote (a candidate bears the burden of needing to EARN someone’s vote), those who support a candidate (or, more accurately, who OPPOSE a particular candidate) are afraid to ‘waste’ their vote by casting it for third party candidates who have no chance of winning.

Bill Clinton’s first nominee for Assistant Attorney General for Civil Rights, Lani Guinier, supported a change in how we cast votes for political candidates in this country. Termed ‘Cumulative Voting’, the method which she supported was that each voter would get one vote for each candidate for a particular office and that they could spread those votes among the candidates and give any candidates as many of their available votes as they wanted. For example, if there were four candidates running for President, then each voter would get four votes to cast for President, any one of those candidates getting any or all of those votes, and multiple candidates being able to be given votes by each voter. While she was on the right road, I believe, she was headed in the wrong direction.

Academic studies and theories on Alternative Voting Methods go back at least several hundred years. In 1770, Jean-Charles de Borda proposed the Borda Count as a method for selecting members of the French Academy of Science. The last 30 years has seen an increase in such studies and research, in large part through the various researches which have been done in Game Theory. There are also MANY historical examples of the effectiveness of quite a few different methods of conducting and totaling votes. The Republic of Venice, for example, thrived for over 1,000 and developed a VERY complex but very effective form of Approval Voting for selecting the Doge which survived almost unchanged for over 500 years, until the Republic was conquered by Napoleon Bonaparte in 1797. Many articles with additional information about Alternative Voting Methods, including Approval Voting, are available on-line. Some of these include:

http://bcn.boulder.co.us/government/approvalvote/altvote.html

http://en.wikipedia.org/wiki/Voting_system

http://en.wikipedia.org/wiki/Single-winner_voting_system

http://en.wikipedia.org/wiki/Voting_systems#Multiple-winner_methods

As with most of the alternative voting systems I have heard of (equal & even; weighted ballots; fractional ballots; instant run-off; etc.) none of them truly address the idea that most people, at least in America, seem to cast their votes, at least for higher offices, against candidates rather than for them. This means that they see ANY method of spreading their voting strength around as weakening their opposition to a candidate they oppose. For example, under cumulative voting, say you have four votes you can use to vote for a particular office and you do NOT want Candidate A to win. You know that everyone else who is voting for that office will also have four votes to allocate and you fear that those who support Candidate A (or who oppose Candidate B) will each cast ALL of their four votes for Candidate A. Will you then be willing to risk the election of Candidate B by only giving him three of your votes while you ‘waste’ your fourth vote on Candidate D?

So, when we explore the idea of alternative voting methods, we MUST consider realistic human nature (and human fears) when we think about the problem. To do otherwise, to pretend that man will make his choices based on the greater good rather than base self-interest, or that he will willingly and comfortably accept the idea of his candidate losing because it is ‘the will of the majority’ and put aside his personal animosities after an election is unrealistic, at best. Therefore, the question is, how can we change voting into a positive process where people vote FOR candidates because there is NO NEED to vote AGAINST any candidates.

One possible solution is simply to allow a voter to vote equally for EVERY candidate that they think would be worthwhile to support. This method of voting is termed ‘Approval Voting’. To use the Approval Voting method, as an example, say that there are five candidates (A, B, C, D, and E). You personally support candidate C; candidate A is a major party candidate who you do NOT want to see in office; candidate B is a major party candidate who you have no real objections to and see as a better alternative to candidate A; candidate D is an independent candidate who you think could be interesting but who has no realistic chance to win; and candidate E is the local homeless wino transvestite who somehow manages to get on the ballot for EVERY election.

Under this scenario, you can not only cast your vote for candidate B (to help oppose the candidate you don’t want to win) you can ALSO cast an equal vote for candidates C (your preferred candidate) and for candidate D (the one you think is interesting and have no objections to). In such a case, you have accomplished all of your positive voting goals, you have shown your opposition to the candidates you do NOT want to see in office (A and E) by not voting for them, you supported your preferred candidate (C) and you gave support to the other candidates that you had no objections to. In this scenario, none of the votes you cast weakened your personal voting power in any way while, at the same time, made it more likely that candidates other than those from the major parties could win because EVERYONE else who liked candidates C and D could also vote for them but, maybe instead of voting also for candidate B, they voted for candidate A. In a very real way, the candidate who had the most REAL support, who was APPROVED by the most voters, would win the election because all votes cast for any and all candidates would count equally to their totals. In this system you can vote for any one of the candidates, any possible combinations of the candidates, or all of the candidates for that office… you can vote FOR candidates rather than AGAINST them.

Now, are there potential problems with a system such as this? Of course there are. A primary one, obviously, is how to prevent ballots being stuffed because the total votes cast for an office can (and would) be greater than the voting population as a whole and not by a predictable percentage (as if every voter HAD to vote for three candidates, no more or less, which would result in a vote total that was three times the number of voters). Another obvious one is to ask if the winning candidate would have to get a majority of ALL votes cast, or just a higher total number of votes than any other candidate. The first of these two possibilities could lead to either a need for a run-off election or a ‘None of the Above’ result. THAT, however, is where the Laboratory of Democracy comes into play. Let’s encourage some cities and/or counties to experiment with it (or, in fact, with ANY of the other alternative voting methods) before any states try it, and then let some states experiment with it. The is the beauty of the Laboratory of Democracy idea, not every location has to use the same processes and, by allowing and encouraging them to experiment with different process, we can gather data about which process variations work well, work partially but need more tinkering with, and don’t work at all.

Too many people in this nation think that trying different ideas of government means having different laws (like using the Ten Commandments as the basis of their laws, for example). They miss the point that democracy is not the RESULTS of the democratic process but the PROCESS itself.

Thank you for reading this article. Please read my other articles and let me know what you think. I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our constitutional government and how we can improve it by building upon what we have seen and learned over the course of the 225 years of The American Experiment.

Rhys M. Blavier
Romayor, Texas

“Truth, Justice and Honor… but, above all Honor”

© copyright 2008 by Rhys M. Blavier

Why I Am Pro-Choice… A Constitutional Literalism Opinion

In Children, Civil Liberties, Congress, Constitutional Rights, Courts and Justice System, Democracy, Drug War, Health, Law, Libertarian, Libertarian Politics, Personal Responsibility, Politics, Science, US Government on May 1, 2009 at 6:01 am

Amendment 9:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

My sister got pregnant when she was only 17 (and unmarried). She got married before the baby was born, but she always carried a chip on her shoulder about that. She is also a far-right, Ayn Rand style objectivist-conservative (but without the actual philosophy to understand what that means). I used to be content to merely say that I supported a woman’s right to make her own choices about her body, including a decision about whether or not to have an abortion. That, however, wasn’t good enough for my sister. She is strongly against a woman’s right to choose to have an abortion and, one day, forced the issue and made me think about what my true, bottom line, no holds bar reason for my pro-choice belief is. It comes down to this. I don’t care when a life starts. When a fetus is inside a woman’s womb it has no more rights than any other parasite does.

Now, I am sure that what I just said has REALLY upset at least half of the people reading this but I am willing to admit what most people won’t on this issue. It isn’t a matter of a fetus being capable of living on its own outside of a womb, or a fetus’ soul or anything else. It is, purely and simply, that a fetus meets the biological definition of a parasite and a parasite has no rights. All rights belong to the parasite’s host.

par•a•site (p r -s t )
n.
1. Biology— An organism that grows, feeds, and is sheltered on or in a different organism while contributing nothing to the survival of its host.

parasite (p r -s t )
An organism that lives on or in a different kind of organism (the host) from which it gets some or all of its nourishment. Parasites are generally harmful to their hosts, although the damage they do ranges widely from minor inconvenience to debilitating or fatal disease.
A parasite that lives or feeds on the outer surface of the host’s body, such as a louse, tick, or leech, is called an ectoparasite. Ectoparasites do not usually cause disease themselves although they are frequently a vector of disease, as in the case of ticks, which can transmit the organisms that cause such diseases as Rocky Mountain spotted fever and Lyme disease.
A parasite that lives inside the body of its host is called an endoparasite. Endoparasites include organisms such as tapeworms, hookworms, and trypanosomes that live within the host’s organs or tissues, as well as organisms such as sporozoans that invade the host’s cells. See more at host.

Now, I like babies as much as anyone, however, I was not allowed by my sister to have a belief that was not utterly devoid of emotion. As a result, I came to an emotionless conclusion on this issue. It simply doesn’t matter to me how far along a fetus is. Nor does any other factor external to a woman matter to me. As long as a fetus is inside its mother, as long as it draws its nourishment and life directly from her, it is not, in my opinion, a person. It might be a ‘life’ but many things are alive which are not granted the status of a person. Once a child is born, by whatever means, it is IMMEDIATELY a person will all individual rights, privileges and protections thereof, but until it is outside of its mother it has no rights.

Ok, I have heard some pro-lifers argue that if a fetus is NOT a person, then someone who injures or kills a mother has not committed murder by killing the fetus. This argument is also nonsense because only the mother has the right to determine if her fetus will be born or not. Anyone who might take that choice away from her has committed murder because of the simple fact that they, and not the mother, took away the mother’s right to have that baby, to give it life.

Now, I have seen people who want those of us who believe in a woman’s right to have complete control over her body try to get us to look at pictures of aborted fetuses in order to try to evoke an emotional reaction. Sorry, this isn’t about emotion, it is about The Constitution. So, you might ask, how does that apply to anything else a person, male or female, might want to do to their own body. I say that it isn’t my right or the government’s right to tell them what they can and cannot do to themselves. This does not apply to those who are not of a sufficient age or intelligence to make an informed consensual decision about themselves but, other than that, if a person wants to have sex with people(s) of their own gender or with prostitutes; if they want to take drugs; if they want to ride a motorcycle with a helmet; or they want to shoot themselves in the head or otherwise end their own lives; if they want to marry someone that they love, serve in the military or raise children, I believe that The Constitution says that they have the rights to do so.

The only valid purpose of law is to protect people from other people; not from themselves or to tell them how to live their lives.

I am a Constitutional literalist, an absolutist. I do not believe that rights are given by The Constitution, nor are they hidden and waiting to be discovered in The Constitution. I believe that The Constitution guarantees that we have ALL rights except those specifically denied to us… and the line is where we take away those rights from someone else. I believe in freedom, and I believe that we can only truly be free when we are willing to allow everyone else to be as free as we ourselves want to be. The only question I have for my readers is this… do you have enough faith in our nation and our Constitution to trust that, with equal freedom, everyone else is capable of determining the courses of their own lives? Do you have enough faith to let everyone else be free?

Rhys M. Blavier
Romayor, Texas

Truth, Justice and Honor… but, above all Honor

© copyright 2009 by Rhys M. Blavier

Thank you for reading this article. Please read my other articles and let me know what you think. I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our government and how we can build upon and improve it based on what we have seen and learned over the course of the 225 years of The American Experiment.

WE MUST AMEND THE CONSTITUTION IMMEDIATELY OR AMERICA IS DOOMED… DOOMED, I TELL YOU, DOOMED!

In Civil Liberties, Congress, Constitutional Rights, Courts and Justice System, Democracy, History, Law, Libertarian, Libertarian Politics, Libertarian Politics 2008, Minorities, Politics, Protest, US Government on April 6, 2009 at 8:42 pm

We need to amend the Constitution to ban gay marriage because people getting married to show their love of each other is an abomination… and because the idea of two guys or two ugly chicks making out with each other is just gross… and we can’t stop thinking about what it would be like to try it! We need to amend the Constitution to ban the burning of the American flag except by the Boy Scouts… and anyone who wants to dispose of a flag the way it is supposed to be disposed of, never mind that you can’t make people respect a symbol by passing laws which order them to We need to amend the Constitution to ban abortion because the wealthy can ALWAYS find doctors to take care of THEIR wives, mistresses and daughters! We need to amend the Constitution to allow school prayer and the reading of the Bible in school even though Jesus said “Do not practice your piety in public.”! We need to amend the Constitution to permit the use of the word ‘God‘ in the Pledge of Allegiance and the national motto because if WE are going to suck up to him, we damn sure want everyone else to be required to, also! We need to amend the Constitution and we have to amend it NOW, because the sky is falling on our heads… AAAAHHHHHH!!!!!!

For all of the ideologues who think that amending the Constitution is the appropriate way to enshrine their particular prejudices and passions, I want to ask you a question. Very simply, “Have you ever actually read The Constitution?

The Constitution is a relatively simply document. Its length is only 4543 words, which isn’t all that much longer than this article. One key thing that is important about the Constitution is not what it says, but what it does NOT say. The Constitution does NOT say anything about social rules or the moral conduct of ‘we the people’ of The United States. The Constitution is an owner’s manual of how to operate our government. It does not tell its citizens how to live their lives. In fact, with the exception of our disastrous foray into social policy with the 18th Amendment, which gave us both prohibition AND well financed organized crime, there is nothing in the Constitution, the Bill of Rights or any subsequent amendment which deals with dictating social or moral behaviors or beliefs to the American people.

Nowhere in the Constitution is a single word which even speaks to specific imposed restrictions on the rights of the citizens, unless you count treason, insurrection, piracy, counterfeiting, malfeasance in office or other such defined crimes as rights which are denied to ‘we the people’. It doesn’t even speak to obligations of ‘we the people’ TO the government, though it does speak of obligations which the government has to ‘we the people’. In fact, other than talking about issues such as voting, or rights before the courts, the Constitution itself barely even deals with individual citizens.

The Constitution itself does not say anything about WHEN, WHY, or FOR WHAT REASONS it should be amended. THOSE questions are left up to the citizens and the legislators of The United States to answer. Article V of The Constitution, in its entirety, says:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Thus, whenever someone raises the issue of amending the Constitution, the first question that should be asked is: “Is the issue itself appropriate for inclusion?

Amending The Constitution is, and was intended by the framers of The Constitution to be, a VERY difficult and VERY time consuming process. It is not supposed to be something that happens very often or for trivial reasons. To see how meaningless a constitution becomes when it can be easily and frequently amended one need only look at the state constitutions of either Texas (amended at least 632 times in 136 years [although Texas voters subsequently rejected at least 176 of them after our legislature passed them]) or Alabama (at 357,157 words it is about 40 times longer than the US Constitution and even three times longer than the longest national constitution of any sovereign nation in the world India, whose constitution has 444 articles, 12 schedules and 94 amendments, with a total of 117,369 words and is, unbelievably, an even worse document than the state constitution of Texas, which has been amended at least 798 times the last amendment was #799, but even the Alabama legislature couldn’t even keep track of how many there were and Amendment #693 doesn’t even exist in 108 years most of those amendments affecting only single individual counties or even cities, or regulate such minutiae at the salary as the Greene County Probate Judge).

Amendments to state constitutions, such as the one now being called for in Iowa by those scared to death by the idea of two people of the same sex even holding hands, often also seem to ignore the fact that the US Constitution takes precedence over them and has this little thing known as Article IV which includes such provisions as the Full Faith and Credit Clause (Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.) and the Privileges and Immunities Clause (Section 2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”).

As difficult as it is to amend the US Constitution, it is therefore necessary and proper for both the Legislative and the Judicial branches to interpret and even expand on the meanings of both The Constitution AND of its 27 amendments. Please note, however, that while the very names of those two branches tells us of THEIR roles in that process (to ‘legislate’ and to ‘adjudicate’), no such power is given to the Executive branch, whose task is to ‘execute’ the laws and provisions of The Constitution and the other two branches. This was yet another aspect of our Constitutional government which was not understood by King George (Bush) II or his cronies in crime. Many people who want to use legislation (either federal or state) to counter or go around provisions of The Constitution, however, also show their ignorance of the document as Article VI specifically states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Constitution of the United States was not conceived or written to tell ‘we the people’ how to live their personal lives or even to place burdens on them towards their Society or their government. It does, however, tell the government how to operate and imposes obligations on it towards ‘we the people’. The Constitution is not a downward directed document, written on the mountain and handed down to ‘we the people’ by a supreme being who must be obeyed. The Constitution was not written by the government to ‘we the people’. The Constitution was, instead, written by ‘we the people’ to tell their government what limits and restrictions are placed upon IT, and what powers and authority are granted to it by the citizens who agreed to be governed by it. I wish people would realize that when they think about using The Constitution for shaping American society according to their own preferences or to try to tell people how to live or what morals they should adopt based on their own prejudices, bigotries and beliefs.

So, if The Constitution focuses on the operation of our government rather than on the behaviors of its citizens, where does the whole debate about our rights originate? The framers of The Constitution believed in ‘natural rights’, the idea that people, by their very nature, HAVE (not ‘are given’, but by birth ‘have’) certain rights which precede the establishment of any government. When The Constitution was written, there was a huge debate about even listing the rights of the citizens of The United States because some feared that the very fact that some rights were enumerated within The Constitution would mean that there would be those who would later argue that rights which were NOT enumerated in The Constitution were not ones which the citizens would have. In Federalist #84, Alexander Hamilton asks “Why declare that things shall not be done which there is no power to do?” and writes that a “bill of rights is not only unnecessary but even dangerous” for that very reason. James Madison told Thomas Jefferson that “I conceive that in a certain degree … the rights in question are reserved by the manner in which the federal powers are granted. The fear of many was the very idea that enumerating ANY rights within The Constitution be interpreted by any moron as meaning that citizens only had rights BECAUSE of The Constitution. The very intention of the framers was to emphasis that the entire purpose of creating The United States was to protect the rights of the citizens and that the very idea that rights had to be ‘givenTO ‘we the people’ was monarchical and anathema to everything they believed in and stood for. Connecticut’s Roger Sherman, in his own proposed draft of a Bill of Rights says that “The people have certain natural rights which are retained by them when they enter into Society.

Much of the concept of natural rights which the framers believed in came from John Locke, the great philosopher and theorist of natural rights. He believed that the primary justification for even founding any government was specifically to make those rights more secure than they would be in a state of nature (a Society with NO government). Thus, the very reason to join together IN a governed Society is to provide ‘we the people’ protection of those rights by being part of a collective, governed Society which is not present in a lawless Society, in which the strong are able to prey on the weak and take those rights away from ‘we the people’. This is where the framers showed their true genius and foresight by giving us the 9th and 10th Amendments to The Constitution, the “if we forgot something, it’s covered, also” amendments.

The 9th Amendment, in its entirety, states that:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The 10th Amendment, in its entirety, says that:

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.

These are both very interesting Amendments. The 10th is usually used to support arguments which advocate State’s Right’s against federal power by people without an awareness that States do not have rights, only powers (as specified in the literal wording of the Amendment), and that those powers are granted by the citizens. It is usually ignored that the 10th tells us that, in addition to having rights, as provided for in the 9th, ‘we the people’ ALSO have power. By the very wording of The Constitution, our government only has certain powers and authorities (specifically spelled out within The Constitution), while ‘we the people’ have rights IN ADDITION to powers and authorities. While there has been a lot of talk about the 10th Amendment, especially since the end of Reconstruction in The South, and since the movement towards recognizing the civil rights of ALL citizens in the 40s and 50s, the 9th may very well be the most ignored part of the entire Constitution. There even seems to be more case law that is based on the 11th Amendment (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”), which was passed in response to one single Supreme Court case in 1793 (Chisholm v. Georgia), than there has been based on the 9th. Most of the court cases which would seem to be obvious ones about the retained rights and powers of the citizens under the 9th and 10th Amendments, such as Roe v. Wade, typically hinge on arguments which use the provisions of the Section 1 clauses of the 14th Amendments regarding Due Process and/or Privileges and Immunities (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”) as their foundations.

Why IS the 9th Amendment so rarely raised, utilized or argued in American Courts? I think it is, very simply and fundamentally, because both the courts and our government are afraid of it. If we followed the literal provisions of the 9th Amendment, both the courts and our entire government would have MUCH less power over the citizens than they would like. If we observed the provisions of the 9th Amendment, the citizens would never have the burden to prove that they have certain or specific rights, the government and the courts would have the burden to prove that they DON’T. The party on whom the burden of proof rests has an MUCH more difficult case to make than the one which has the presumption of being correct or innocent. No government in history has ever wanted to bear that burden when they are challenging their own citizens, and courts are a function of government. Into this fray go those who advocate that The Constitution favors the government over the governed. One of the most prominent advocates of reading The Constitution as only protecting enumerated rights was Judge Robert Bork and his famous ‘inkblot’ interpretation of the 9th Amendment. About the beliefs held by Judge Bork and those who interpret The Constitution using the same flawed concept of ‘originalism’ which he uses, that the only rights belonging to the citizens are those which are specifically spelled out in The Constitution and that any other ‘discovered’ rights are illegitimately ‘created’ by the courts, The Oxford Companion to The Supreme Court of the United States says:

Yet this skeptical view of unenumerated rights would have the practical effect of converting the original scheme of limited [and] defined powers [of the government] in a sea of individual rights into a scheme of limited enumerated rights in a sea of [unlimited] government powers.”

I would also ask those who advocate such positions as Judge Bork’s for his ‘original intent’ interpretation of The Constitution, “Why do you think that the framers of The Constitution destroyed all of their notes and minutes from the entire Constitutional Convention if not to keep those who followed them from relying on their intent and, thus, giving us the freedom to make this country what we want it to be and to be able to adapt it to the changing needs of Society? While I have my own beliefs about requiring legislators to specify the goals and objectives for any legislation that they create (in order to make it easier for us to get rid of that legislation later), I can find no fault with the wisdom of the founders to deny us the knowledge of their ‘original’ intentions.

Anthony de Jasay, a Hungarian-born libertarian anarchist philosopher and economist who is best known for his writings against ‘the state’, talks about using a ‘Presumption of Liberty’ concept of natural rights. De Jasay argues that “liberty should be presumed, not because we have a “right” to it, or because it is the most important value or goal, but because it follows from the requirements of epistemology and logic. In other words, instead of appealing to a person’s preference for liberty, logic dictates that liberty should be presumed. The critical rationalist and philosopher of science, Gerard Radnitzky, was so impressed with de Jasay’s case for the presumption of liberty that he stated that “for the first time the political philosophy of libertarianism and of classical liberalism has gotten a solid base in logic and epistemology.


There is much to be considered by anyone who would advocate amending The Constitution with a goal of enshrining bigotry or prejudice within it, or of using it to take away rights from our citizens. To do so would be against every idea upon which The United States was created. I personally think that there should be (at least) four levels of rights and powers which should be considered by anyone who thinks they should have the right to tell everyone else what freedoms they do and do not have. They are, in order from highest to lowest:

1.) Rights that are retained by the people;

2.) Rights that are voluntarily surrendered by the people to the government;

3.) Rights that are suppressed by the people in our ‘voluntary’ association in a governed Society; and

4.) Rights that are repudiated by the people through the granting of certain powers and authority to the government.

Governments may have power, but only people have rights, and it is simply wrong for anyone to try to use our Constitutions to try to take away ANY of those rights. That is a ‘right’ which I do not believe anyone of ‘we the people’ ever gave away to anyone else.


As always, I want to acknowledge books and the Internet for giving me invaluable assistance in being able to use my mind and to write articles such as this. A mind is a terrible thing to waste. Special thanks must be given, as is common for my constitutional articles, to The Oxford Companion to The Supreme Court of The United States (second edition), edited by Kermit L. Hall.


Rhys M. Blavier

Romayor, Texas

Truth, Justice and Honor… But Above All, Honor

© copyright 2008 by Rhys M. Blavier

The American Experiment

In Constitutional Rights, Libertarian on April 3, 2009 at 9:29 am

The history of the American Experiment in self government has always been viewed as a battle between dichotomous ideas struggling for supremacy over the other… federalist vs. anti-federalist; conservative vs. liberal; republican vs. democrat; urban vs. agrarian; north vs. south; east vs. west; central government vs. states rights; freedom vs. security; black vs. white; rich vs. poor; business vs. labor; educated vs. uneducated; interventionist vs. isolationist; inheritor vs. usurper; patriot vs. traitor; traditionalist vs revisionist; living constitution vs. original intent; hawk vs. dove; defender vs. apologist; secrecy vs. transparency; communist vs capitalist; church vs. state; chaos vs. order; good vs. evil; us vs. them; you vs. me. It is a mindset that can be expressed in the idea that ‘those who are not with us are against us and those who are against us are our enemies’. The history of the American Experiment has been seen as a polarized conflict between opposing forces but, what America has never been good at is recognizing nuance, shades of grey, middle ground or balance. Every side wants to lay claim to the high ground and the moral upper hand in the struggle against their opposites but what none of them seem to be able to recognize is that none of them are opposites and all of them need the other ‘side’. What no side acknowledges is that their side is not a side at all and is just as fragmented and torn by conflict as the larger struggle they see themselves engaged in. The reason the American Experiment is doomed to end in failure is because any lesson learned is seen as justification for a polar opposite rather than proof of the necessity for moderation… all sides are right, all sides are wrong… it is up to the center to hold.

The immediate aftermath of the ratification of the American Constitution and the institution of American Constitutional Government was a conflict over which side was the inheritor and defender of the Revolution and which was side was the traitor to its ideals. This conflict was given physical embodiment in the personages of Thomas Jefferson and John Adams. Consider, however, that both of these men in opposition, each fighting to define and advance their vision of the cause they had fought together for, each the personification of their side in opposition to the other, had the same enemy in Alexander Hamiliton. Consider that Alexander Hamilton was a Federalist as was Adams and that Hamilton saw the Republicans and the Virginian planter class as enemies to be destroyed, literally destroyed by armed force, and yet Hamilton was ultimately responsible for Jefferson’s election as President in recognition that Jefferson was a more honorable man than Aaron Burr was. The failure of the American Experiment, from its very beginning, was the failure to recognize that the the differing sides were not their enemies, they were their opposition, they were each necessary to provide balance. Like a gyroscope spinning, the opposing sides are part of the same circle and they are each needed to orbit and balance the other around the center to keep the whole thing from tearing itself apart. The extreme example of this can be seen in Nazi Germany under Adolf Hitler and the Communist Soviet Union under Joseph Stalin. One the embodiment of the extreme right and the other of the extreme left. Implacable enemies who truly hated each other and yet rather than being opposites at two end of a line, they were each on a circle and had gone so far around that circle that they were at the same place.

There is a zen lesson which balances the paradoxical idea of “if you love something, let it go…” and that is that if you want to overcome something you oppose you must embrace it, for only by accepting it can you understand it and only by understanding it can you control it. Keep in mind that our ‘my side vs. their side’ mentality ignores the reality that the the struggle between black and white also includes Hispanics, Asians, and Native Americans, as well as ignores that if someone was truly ‘racist’ they would automatically like everyone else of their race and automatically hate everyone else not of their race… oh yes, and what about those of mixed race… are they both or neither, us or them? The conflicts are illusory and blind us to our need for the ideas and strengths of our opposites. Consider the idea that there are no paradoxes, only things which we don’t understand enough to see the logic with makes seemingly disparate forces things that are unified. There are those who view history as being without order or a coherent order and that any effort to impose upon history as grand scheme is a lie. At the same time, there are those who see in history a purposful march from one great moment to the next. Adams and Jefferson discussed this in their voluminous correspondence between 1812 and 1826. But why can both ‘sides’ not be correct. If we apply the idea of chaos theory and fractal geometry to the discussion we can see an order WITHIN the disorder. This is an idea we must incorporate if we are to salvage anything from the American Experiment… the ordering of the chaotic.

Adams and Jefferson were both right. Jefferson was right that we need change, regular ‘revolution’, freedom and the supremacy of the individual over the tyranny of government. The needs of the one outweigh the needs of the many; the tyranny of the majority; permanent revolution; each generation is supreme. Adams was right that we need order and structure, stability, control and the advancement of the greater good. The needs of the many outweigh the needs of the few; majority rules; what holds today can be depended upon tomorrow. Jefferson and Adams were not enemies, they were partners in opposition… and if they had ever realized that and come together in common cause within the Constitution how different our nation might be today. Adams and Jefferson failed to recognize and tackle the greatest challenge history gave them… to join their disparate ideas into a unified whole. Our job now is to evaluate the successes and failures of the American Experiment and build a stronger institution for the benefit of those who will come after us. Jefferson and Adams should inspire us in their failure and give us the raw materials we need to build our foundation for the future.

Rhys M. Blavier
Romayor, Texas

Truth, Justice and Honor… But Above All, Honor

Live-blogging: Hamilton’s Curse: Chapter 1: The Rousseau of the Right

In Books, Corruption, Courts and Justice System, History, Libertarian, literature, Live-blogging, Police State, Protest, Taxation, US Government on March 31, 2009 at 10:56 pm

Although no other founder has had “a bigger impact on American society” than Alexander Hamilton, his impact has nevertheless been “almost universally negative from the perspective of those who would like to think of America as the land of the free,” people like you and me (p. 9).

Thomas J. DiLorenzo continues with this theme as he embarks on chapter two of Hamilton’s Curse, the title of which comes from an article by political scientist Cecelia Kenyon in the scholarly journal Political Science Quarterly (pp. 22–23).

The defining characteristics of the British Empire, the same British Empire American revolutionaries found so liberticidal that secession was their only option, were “dictatorial monarchy, centralized power, imperialism, and economic mercantilism”—the very same set of conditions Hamilton fervently hoped America would adopt (p. 9).  Thus, if Hamilton was to convince the public to adopt these conditions, he would have to use rhetoric with striking simularity to Jean-Jacques Rousseau’s conception of “general will.”  Thus, Hamilton discussed his policies in terms of “the public interest” literally “hundreds of times in [his] speeches, letters, and writings” (Ibid.).  This is, of course, an ancient tactic of statist oppressors, but one that often proves successful nonetheless.

Thus DiLorenzo writes, “Hamilton was an American mercantilist, and he and his party (and its political heirs, the Whigs and Republicans) advocated special-interest policies that would primarily benefit politically connected merchants, manufacturers, speculators, and bankers at the expense of the rest of the public.  The ‘public interest’ rhetoric was (and is) an indispensable political smoke screen if they were to achieve political success.  The wool must be pulled over the public’s eyes with ‘public interest’ rhetoric if mercantilism were to succeed.  Jefferson and his political compatriots, such as John Taylor, saw through it” (pp. 23–24).

We learn a bit more about Hamilton in this chapter, for example we learn that he was a slave-owner (pp. 10–11) who became a founder of the New York Post with the purpose of smearing his rival Thomas Jefferson.  We learn that Hamilton was an advocate of outright nationalism (p. 13) who wanted America to “a kind of ‘king’ [a permanent president] who would yield supreme power over all people, who in turn would have essentially no say in how their government was run.  The states would be mere provinces whose governors would be appointed by and loyal to the ‘king.’  Under such a regime, all political power in the nation would be exercised by the chief executive and his circle of advisors” (pp. 16–17).  And we learn that Hamilton had no qualms with lying in order to achieve his goals.

Hamilton, for example, prior to the ratification of the U.S. Constitution, assured Jeffersonian localists that the various states would still be sovereign under the Constitution, even though he clearly had no personal opposition to the seizure of power by the central state.  Moreover, he promised that the newly-proposed U.S. Congress would never contemplate “marching the troops of one state into the bosom of another” for any reason (p. 20).  This, it turns out, was a bald-faced lie.

Hamilton, who wished to have a huge national debt and ever-higher levels of taxation, “was instrumental in getting Congress to enact numberous excise taxes, a national property tax, and other taxes, including a special tax on whiskey” (p. 34).  Unfortunately for western Pennsylvanian farmers, who used whiskey as their means of exchange (i.e. money), this made basic commerce too difficult and thus destroyed trade.  Needless to say, the farmers rebelled by refusing to pay the insane tax.

This act of independence and rebellion infuriated Hamilton, who wanted to fight the rebellion with “overwhelming force” (Ibid.).  “So at Hamilton’s urging, President Washington personally led an army of more than 13,000 conscripts to Pennsylvania, accompanied by Hamilton the chief tax collector,” the very thing he had promised the New York ratifying convention less than a decade earlier would never happen (Ibid.).

We really shouldn’t be surprised by this corruption.  Hamilton had no love for restrained government, and instead aimed to “build the foundations of a new empire” (p. 14).  Both Jefferson and Hamilton, DiLorenzo tells us, “fully understood what was at stake:  Would the American government mimic the British and pursue ‘national greatness,’ ‘imperial glory,’ and empire, as Hamilton preferred?  Or would the primary purpose of government be the modest Jeffersonian one of protecting the lives, liberties, and property of its citizens?  Both men understood that empire would mean that government would become the master, rather than the servant, of the people, as it had been for generations in the Old World” (p. 12).  The difference between the two men is that Hamilton wanted the involuntary servitude associated with statism to be foisted upon the haplas masses; the Jeffersonians did not.

Hamilton was no doubt disappointed by the Philadelphia Convention, therefore, which rejected his goals.  As Robert Yates’s Secret Proceedings and Debates of the Constitutional Convention and Senator John Taylor’s New Views of the Constitution of the United States (1823) point out, the Founders understood themselves to be creating a system wherein each of the states retain their sovereignty.  Although Hamilton proposed his “permanent president,” the Convention whole-heartedly rejected the proposal and the philosophy of “executive dictatorship and monopoly government” (p. 17), instead viewing the Constitution as “a compact among the free and independent states and not as the creation of a ‘national’ government” (Ibid.).  It was never their intention to create a “central government whose laws would always trump the laws of the states” (p. 18), so it should come as no surprise that Hamilton, following the convention, called the Constitution “a frail and worthless fabric” (p. 14)—it didn’t achieve his hypernationalist goals.

Unfortunately today, the central state is treated as a Leviathan whose legitimacy trumps all below it, from the various state governments down to the individual.  Thus, although Hamilton initially saw his objective as having failed, in the end Hamiltonianism has unfortunately succeeded in transforming the American republic into the American Empire.  Hamilton the nationalist, Hamilton the mercantilist, Hamilton the militarist (pp. 28–29, 32), would be gleeful at the position of the modern American state.

I cannot say that this chapter comes without a personal objection.  On page 27, DiLorenzo states that the doctrine of implied powers, as advocated by Hamilton and his Federalist Party, bore “liberal judicial activism.”

I must ask, why do people still insist on implying that judicial activism necessarily expands the state?  It seems to me that it is judicial restraint that allows the Congress and the president to expand state power—in other words, the judiciary restrains itself from overriding the unconstitutional actions of the other two branches.

Liberal judicial activism was used back in the day to limit the power of the state, used to say that the unconstitutional big government policies of the other two branches were just that—unconstitutional—and were thus null and void.  Liberal judicial activism was used in the early years of Roosevelt to fight his unconstitutional New Deal.

Judicial restraint, conversely, was used—more often then not—to pretend that various big government programmes of Congress and the president were in fact perfectly fine vis-à-vis the Constitution.  Thus, the judicially restrained court effectively restrained itself from nullifying these laws.

It therefore seems to me that the Federalist Party brought us the birth of conservative judicial restraint.

DiLorenzo also fails to point out, when speaking of state sovereignty, that states do not actually possess “rights,” that rights can only be possessed by individuals and the voluntary associations they form.  (Surely, not even Mussolini would be so cavalier as to claim that the state is a voluntary association.)  The Founders clearly understood this, as the tenth amendment, which DiLorenzo himself addressed on pages 17–18, refer to the reserved powers of the states, not their “rights.”

DiLorenzo’s failure to mention that states do not actually possess rights and his willingness to associate judicial activism with either the Federalists or Hamilton’s doctrine of implied powers appear to be the only drawbacks to this chapter.  DiLorenzo’s attack on Hamilton remains well-deserved, and my view of Hamilton has, especially in light of his vicious and vile attack on the admirable Whiskey Rebellion, sunk to all new levels.

—Alexander S. Peak

Scotty Boman, Michigan Libertarian for U.S. Senate puts out new video

In Civil Liberties, Constitutional Rights, Libertarian, Libertarian Party-US, Media, Politics on October 1, 2008 at 9:23 pm

H/T IPR

Candidate Endorsement: Chris Bennett for Vice President

In Activism, Candidate Endorsement, Chris Bennett, Civil Liberties, Constitutional Rights, Drug War, Economics, First Amendment, George Phillies, Iraq War, Libertarian, Libertarian Convention, Libertarian Party-US, Media, Minorities, Politics, Second Amendment, Steve Kubby, Taxation, US Government, War on March 26, 2008 at 10:10 pm

Chris BennettAs you are hopefully all by now aware, longtime LFV contributor Chris Bennett is seeking the LP’s Vice Presidential nomination. While he would have my support simply for being an LFV contributor and a great guy, there is so much more to his candidacy that I have decided to formally endorse his bid for the LP Vice Presidential nomination.

Chris is 35 years old (will be 36 on August 30th) and lives in Springfield, Illinois. He graduated from Heritage High School in Littleton, Colorado. As an interesting aside, Chris was classmates with Matt Stone, co-creator of “South Park”.

Chris has been married to Evonne Bennett for eight years, and they have two children, Brandon (age 7) and Charity (age 9). He will graduate in May from the University of Illinois at Springfield, with a degree in Political Studies, and a minor in Economics. As such, there should be no question that he has the education to back up his candidacy, especially when compared with other LP candidates (including many of those seeking the LP’s Presidential nomination).

Chris also has the actual experience to back him up. As a libertarian activist for the last 16 years, he has volunteered on four presidential campaigns, three of them Libertarians. He was Scheduling Coordinator for the late Aaron Russo during his 2004 presidential campaign, and was also heavily involved in the Marrou and Badnarik presidential campaigns. He is currently the Legislative Chair for the Libertarian Party of Illinois, where he has fought for better ballot access for third parties in one of the most difficult ballot access states in the country.

Chris announced his candidacy right here on Last Free Voice last year, and his platform is as follows:

I will not make promises I can not keep. I do not have 200,000 dollars in future contributions and I am not endorsed by a famous dead person. However there are some promises I will keep:

I am strongly against the invasion and the “police action” in Iraq and will help push for an anti-war resolution at the Denver Convention.

I am against a fair tax and I will continue to fight to decrease the tax burden for all Americans.

I will continue to fight to restore our civil liberties and constitutional rights and fight to eliminate the Patriot Act, the Real ID Act, the Military Commissions Act and the North American Union.

As an African-American, I will use my candidacy to recruit more minorities and women into the libertarian movement.

As a soon-to-be college graduate, I will continue to convince younger voters and non-voters that the Libertarian Party is the future not the two “boot on your neck” parties and use my candidacy to re-energize libertarian college campus and local organizations across the country.

If I am nominated, I will help/assist state parties on getting our presidential ticket on their respective state ballots.

If I am nominated, I will assist serious Libertarian candidates running for office in all facets of their campaign across the country.

The days of a dormant Libertarian Party VP candidate are over. Our VP candidate should be as active as our Presidential candidate and I will proudly work with whoever you choose as our Presidential candidate in order to spread our message of liberty and freedom to the American people.

Chris has been working hard to spread the word about his candidacy, and in fact he is one of the few Libertarian candidates to get attention from the mainstream press. Even better, he received FRONT PAGE attention in a major newspaper, the Springfield State Journal-Register.

By BERNARD SCHOENBURG
POLITICAL WRITER

Published Monday, October 15, 2007

At 6-foot-9, Chris Bennett is hard to miss. And his political aspirations match his height.

Bennett, 35, a senior at the University of Illinois at Springfield, is hoping to become the vice presidential nominee of the Libertarian Party.

“The days of a dormant Libertarian Party VP candidate are over,” said Bennett in a news release announcing his quest last week. “Our VP candidate should be as active as our presidential candidate and I will proudly work with whoever you choose as our presidential candidate in order to spread our message of liberty and freedom to the American people.”

Bennett was soft-spoken as he explained in an interview how he realized, after working on Bill Clinton’s primary campaign in 1992, that he didn’t really believe in Clinton’s platform.

“I just didn’t like how he wanted more government in more stuff,” Bennett said. “I didn’t like government having more control over the health-care situation, as Hillary tried to do and she’s proposing to do now.”

So, Bennett said, “I went soul searching.”

“The Republicans didn’t feel right,” he said. “They never really do reach out to minorities or a lot of women. And the Democrats, it just seems like they were taking the black vote for granted. So I decided ‘I’m going to search for another party.’”

Bennett had seen a Libertarian Party convention on C-SPAN. The convention included an African-American candidate for the presidential nomination, Richard Boddie.

“He was saying stuff that I really agreed with,” said Bennett, who is black.

Bennett now has been a Libertarian activist for more than 15 years, including working as scheduling coordinator during the late Aaron Russo’s 2004 attempt to be the Libertarian nominee for president.

“For the longest time, I used to carry a Constitution in my back pocket,” Bennett said, “so if anybody wanted to get in a philosophical, constitutional argument, I could whip out my Constitution.”

Bennett doesn’t think the country’s leaders are adhering to the Constitution, including going to war in Iraq without a formal declaration of war. Among his platform planks are “restore our civil liberties and constitutional rights,” including elimination of the Patriot Act and a proposed federal “Real ID” identification card. He said both invade people’s privacy.

He’d like to see lower taxes, with eventual elimination of the Internal Revenue Service.

Bennett frequently posts on Web sites, including one called

lastfreevoice.com, often in strong language.

“Jesse Jackson has taken up the anti-gun issue only because he failed as a ‘civil rights’ leader and pushes his new agenda to re-invent himself,” Bennett claims in one entry. “Just remember Hitler forced his people to give up their guns and look what happened; millions died in concentration camps. Life, liberty and the pursuit of happiness; I’ll defend those values with my gun to protect my right to bear arms.”

Bennett said he actually doesn’t own a gun, but believes in the right to own one.

He’s also taken off on television preachers who get rich through their appeals.

“TV evangelists are the scum of the Christian community,” he said, writing about recent allegations of misspending by Richard Roberts, son of Oral Roberts. “Isn’t it immoral to steal from your contributors for your own lavish lifestyles …? Who do they think they are — the GOVERNMENT?”

And in an essay chastising Democrats for not doing more to get U.S. troops out of Iraq, he refers to the president as “Fuhrer Bush.”

Bennett is pro-life on abortion, which goes against the Libertarian platform. But he thinks other Libertarians may be coming around. He also thinks steps should be taken to legalize drugs.

A native of Cedar Rapids, Iowa, Bennett moved to Littleton, Colo., at age 9. He’s been married to his wife, Evonne, for 71/2 years, and they have two children. He moved to Springfield in 2005 to attend UIS.

While he said rural or suburban Libertarians might not be keyed into the issue of race relations, those from urban areas are, and he thinks the party is good for African-Americans.

In addition to ending discriminatory drug laws, which he blames for too many blacks being in prison, the Libertarians’ anti-tax sentiment would also help, Bennett said.

“If we lower taxes, people would be more able to get the house that they want or be able to contribute to their church or their social organization a little bit more,” he said. People could also “save for a rainy day.”

“I know a lot of people who would like to start their own IRA account, but they can’t because they’re taxed so much,” Bennett said.

Clearly, Chris interacts well with the media, and is able to get across his point intelligently, but also in a way that the average person can easily understand.

For the above reasons, I endorse Chris Bennett, without reservation, for the Libertarian Party’s Vice Presidential candidacy.

This brings me to another point. Chris is in desperate need of donations, to help him get to the Libertarian Party Convention in Denver. As a family man working his way through college, with a wife and two children, he is far from wealthy. Not only will he need the funds for travel and hotel, plus incidentals such as food and beverage, he will also need the funds to print brochures, to hand out to the delegates in order to get the votes he needs.

We all give money to other candidates, whether Ron Paul or Steve Kubby or George Phillies, or someone else. We need to start giving money for Chris’s campaign, because unless he can afford to get to Denver, he will be unable to continue his campaign. It would be a travesty if a qualified candidate such as Chris was not seriously considered for the LP’s Vice Presidential nomination, solely because he lacks the funds to attend the convention. We can do much better than that, especially with a candidate who has proven his worth. If we all pitch in, we can get Chris to Denver.

You can make donations to Chris’s campaign by clicking here, or you can click directly on the “donate” link on his website, which will take you to the same place. You can donate by credit card, debit card, or by setting up other payment arrangements via PayPal.

While I normally would never ask anyone to donate to a specific campaign, I’m making an exception in this case. Chris is “one of us”, a valuable and respected member of the blogosphere, a valuable and respected contributor to Last Free Voice, and a valuable and respected member of the libertarian movement, who has given freely not only of his time and expertise on other campaigns, but also has managed to engage in hands-on activism while in college and trying to raise a family.

Chris is not just another libertarian on the internet, waxing philosophical about libertarianism, who suddenly decides he should be nominated to represent the LP in a lofty position; nor is is a Johnny-Come-Lately to the LP who suddenly decided he should be nominated for for the Vice Presidency; he has actually made many years of sacrifices which benefit us all, and he has the experience and education to back up his campaign for the Vice Presidency.

Unlike many candidates, Chris is not looking to raise millions. He has set a goal of $3000 to attend the LP Convention, and since I used to live in Denver, I can assure you that it’s a very reasonable goal, especially since it will also cover the costs of his campaign brochures.

I have made a commitment to donate $100 to Chris’s campaign, to help him get to Denver. If only 29 more people match that commitment (and I know there are many others who can afford to do so), Chris will have met his goal. However, even if you can only spare $10, or $20, or $50 – or if you can give the legal maximum of $2300 per person, or $4600 per married couple – you can rest easy with that donation, knowing Chris is a tried and proven libertarian, and a candidate who has actually earned that donation through his many years of activism on behalf of libertarians everywhere.

Please, help spread the word. Let’s raise the funds necessary to get Chris to Denver!

Disturbing medical marijuana case involving an AIDS patient

In Activism, Big Brother, Children, Civil Liberties, Courts and Justice System, Crime, Drug War, Health, Human Rights Abuses, Law, Law Enforcement, Medical Marijuana, Nanny State, Police State, Protest, Science on March 17, 2008 at 6:44 pm

Tom FaltynowiczTom Faltynowicz, a 43-year-old gay rancher in Meade County, South Dakota, was diagnosed with Aquired Immune Deficiency Syndrome (AIDS) in 1990, and is currently facing criminal charges for possessing and growing marijuana for medicinal usage.

For those of you unaware of the specifics of that disease, a patient infected with the Human Immunodeficiency Virus (HIV) may or may not develop AIDS. Once infected with HIV, the disease damages the CD4 cells (T-Cells), and in fact uses those cells to replicate within the body; CD4 cells can be replaced through normal process in the early stages of the disease, but eventually the counts start to fall as the cells are overcome by the virus. A CD4 count between 700 and 1000 is considered normal in a non-HIV infected person; while a CD4 count of about 500 is considered normal when the virus is present. A CD4 count below 200 is indicative of AIDS, since it is at that point that the body loses its ability to fight off opportunistic infection.

Opportunistic infection is any infection which, under normal circumstances, the body could easily fight off. However, due to the lack of CD4 immune cells, AIDS patients are at very high risk of contracting diseases which they would never contract were it not for the virus destroying their immune system. Some diseases are so common in AIDS patients, and so uncommon in non-AIDS patients, that they are considered to be AIDS-defining diseases. Examples of AIDS-defining diseases include Pneumocystis Pneumonia (a fungal infection of the lungs) and Kaposi’s Sarcoma (once believed to be a rare form of cancer, now believed to be caused by Herpes Virus HHV8); these diseases are normally not seen in patients with a normal immune system. While there is viable treatment for many opportunistic diseases, they must be treated swiftly in an AIDS patient due to the patient’s body being unable to fight infection on its own.

Another important way of measuring HIV is by measuring the viral load. The viral load is the amount of HIV in the body. So while a CD4 count measures the amount of damage HIV has done, a viral load count will measure how much of the virus is actually in the body. In this way, doctors are able to measure whether drugs are working to halt the spread of the virus.

AIDS is a pandemic first identified in 1981 by the Centers for Disease Control (CDC), due to Pneumocystis Pneumonia being identified in five homosexual men in Los Angeles. The disease did not take over worldwide as quickly as it is generally believed, though. AIDS has been identified in tissue samples of patients who died of unknown causes as early as 1959; one postmortem case identified the virus in a tissue sample from a 15-year-old boy who died in St. Louis, Missouri, in 1969, though it is still unknown how the boy may have contracted the virus. Some scientists suggest the virus could have first infected humans sometime during the end of the 19th Century, while other scientists suggest it first infected humans during the early 20th century, between 1915 and 1930. Regardless of whether it started during the late 19th Century or early 20th Century, it took many decades for it to even become prevalent enough to be noticed. Since the virus is slow to overtake its host, the window for inadvertent infection of others is years, rather than days or weeks as with most viruses.

It is unclear exactly how the virus started, but it seems clear that it crossed species from primates (which can carry a disease known as the Simian Immunodeficiency Virus) into humans, likely when humans came into contact with the bodily fluids of monkeys, possibly during consumption, hunting or butchering the animals (monkey meat is a delicacy in some areas of the world, and is regularly eaten in some areas of Africa). The virus spread due to a number of factors, including vaccines given with unclean needles in developing countries. While AIDS is now generally viewed as a disease of gay men and intravenous drug users, the truth is far more chilling, since the virus is not contained only within a particular population. Many women and children are infected with the virus, and in some areas of the world, particularly Africa where infected patients do not have access to proper health care, the number of deaths has become catastrophic.

At this time, there is no cure for HIV, or for AIDS, nor is there a vaccine to prevent transmission. However, scientists have designed a number of drugs inhibit the virus’s replication. To understand how these drugs work, a short primer on the virus is necessary.

HIV takes over CD4 cells, changing their molecular structure by inserting its own ribonucleic acid (RNA). The virus itself, which is too small to be seen except with an electron microscope, consists of an outer envelope containing the virus and the proteins and enzymes necessary for replication; the envelope has about 72 spikes on its surface. When the virus bumps into a cell coated by the CD4 protein, the spikes stick into the cell and fuse, at which time the inner contents of the HIV envelope is released into the CD4 cell.

Once inside the cell, the HIV enzyme called reverse transciptase converts the viral RNA into DNA, which is compatible with human genetic material. This DNA is transported to the cell’s nucleus, where it is spliced into the human DNA by the HIV enzyme called integrase. Once it is spliced into the human DNA, the HIV DNA is known as provirus. The provirus may lie dormant within a cell for quite some time. However, when the cell becomes activated, it treats HIV genes in almost the same way as human genes. First it uses human enzymes to convert HIV genes into messenger RNA. The messenger RNA is transported outside the cell nucleus, and is used as a blueprint for producing new HIV proteins and enzymes, much in the same way as the human body normally produce replacement cells.

Complete copies of HIV genetic material is contained among the strands of messenger RNA produced by the cell. These copies combine with newly made HIV proteins and enzymes to form new viral particles, which are then released from the cell. The enzyme protease plays a vital role of the HIV life cycle, as it chops up long strands of protein into smaller pieces, which are then used to construct mature viral cores. At that point the newly matured HIV particles are ready to infect another cell, and begin the replication process all over again. In this way the virus quickly spreads through the human body, and causes its host to become infectious. HIV is passed to others through bodily fluids; some fluids contain more of the virus than others.

Contrary to popular belief, people do not die of HIV, or of AIDS. They die of the opportunistic infections which accompany the complete loss of their immune system. Patients therefore must take a strong cocktail of medications to stop the virus from replicating and destroying their immune system. Some common drugs prescribed for AIDS patients, to stop the virus from replicating, include reverse transcriptase inhibitors, which prevent the viral RNA from being converted into human DNA; protease inhibitors, which prevent the virus from creating new mature viral cores; and integrase inhibitors, which prevent the viral DNA from being spliced into the human DNA within the cells.

Unfortunately, with those life-saving treatments for the virus come life-threatening side effects, from lethal liver damage to an overwhelming nausea which results in starvation and dehydration; when this occurs, it only worsens those same symptoms which can be caused by the virus itself. Over the years many drugs have been discovered to combat the side effects (those same side effects are found in many other medical conditions as well), and to increase the quality of life for those who are infected with the virus; some of those drugs and treatments are pharmaceutical in nature, and some are natural.

One of the non-pharmaceutical drugs, which has proven very helpful in battling the anxiety, overwhelming nausea and physical wasting which comes with the virus and its treatment, is marijuana. So effective is marijuana that scientists have even made a pharmaceutical version of the drug, used in chemotherapy patients as well as AIDS patients, which contains synthetic THC (the active ingredient in marijuana). However, many patients believe that the natural THC in marijuana works better than the synthetic version in Marinol, and science supports this belief. In studies of marijuana usage for medicinal usage, it was found that other chemicals found in marijuana have additional medicinal effects which complement the effects of THC. Furthermore Marinol is extremely expensive (Tom’s Marinol costs about $2200 per month, so severe is his nausea and gastrointestinal symptoms), and thus the drug is far beyond the financial reach of most patients; and for that reason they cultivate and smoke marijuana for medicinal purposes. While the black market cost of marijuana can be high, the plant can be cultivated at home from seeds, at very little cost to the patient.

In some states, it is legal for patients with a valid medical prescription to possess certain amounts of dried and cultivated marijuana for personal medicinal use. However, even in those states, the US Government – which has declared that marijuana is an illicit and therefore illegal drug – refuses to permit patients to use the cultivated form of THC. Patients are regularly arrested for merely possessing the substance which allows them to live a more normal life, and which in cases of extreme wasting seen in AIDS, is actually life-saving. This occurs nationwide, including in the states where marijuana is legal for medicinal use.

I do not advocate the casual use of marijuana (or any other drug, prescription or otherwise) to get “high”. I do strongly advocate the right of physicians and patients to determine the best course of treatment, and I believe the government has no right to interfere in the doctor/patient relationship when the patient is not being placed in untoward danger.

Enter Tom Faltynowicz. When Tom was diagnosed with AIDS in 1990, he was given “maybe a few years” to live. Eighteen years later, he is in a fight for his life, but it’s a fight of a very different kind.

In September 2007, law enforcement officials in his native Meade County received an anonymous call, stating that Tom had between 75 and 100 marijuana plants growing behind a metal building on his property. It is believed that the anonymous call came from Tom’s daughter, who was angry with him because he had recently stated his disapproval of her relationship with a particular man.

When Meade County Investigator Michael Walker and South Dakota Division of Criminal Investigation Agent John Griswold arrived at Tom’s home the next day, there were not 75 to 100 plants on the property, or even anywhere near that many; in fact, there were no plants out in the open at all. However, when asked by those officers about the accusation, Tom immediately admitted to growing marijuana to treat his medical condition. He even invited the officers into his home, so they can see where he was growing it, and he was completely cooperative at all times, even according to the police report regarding the incident. All told, the officers found five plants, and about four ounces of dried marijuana. There was never an allegation that the marijuana was being used for anything but his medical condition, and never an allegation that he was selling the marijuana. It remains undisputed that Tom was using the marijuana to treat AIDS, and the side effects of the many potent medications he takes to fight the virus.

Tom takes a total of four antiretroviral drugs to combat the HIV infection: Combivir (a combination of Retrovir and Epivir), Sustiva, and Viread. Each of these drugs, by themselves, come with potentially fatal side effects. All of these drugs can cause severe nausea, and can result in extreme anxiety as an additional side effect. In addition, Tom has been prescribed Marinol, the synthetic THC drug to combat nausea and vomiting, so there is no question that he suffers the side effects which are treated by marijuana, and there is no question that his side effects are severe based upon his dosage. However, Tom says that the marijuana is far more effective than the Marinol, since Marinol makes him so tired that he cannot function; and his physician is aware of and supports his use of marijuana to treat his symptoms.

Tom, though he has no prior criminal record with the exception of two prior misdemeanor convictions for possession of small amounts of marijuana – both of which occurred after he was diagnosed with AIDS – pled guilty to felony possession of marijuana. He faces a maximum of two years in prison, and a maximum fine of $4000; he could also be given probation. His sentencing date has been set for April 21st, before the Honorable Jerome Eckrich, Circuit Judge. Tom’s Infectious Disease Specialist, Dr. Traub, will speak at the sentencing hearing. The State Attorney has already said that he will not object to anything Dr. Traub might say. It appears that no one is interested in punishing Tom Faltynowicz; at the same time, under the law, his possession of marijuana – regardless of the reason why he possessed it – is a felony in the state of South Dakota.

Tom, however, is an exception to the reason that law was written. It was written to stop people from abusing the drug to get high, and to stop them from selling or otherwise providing it to others for the same illicit purpose. It is extremely doubtful the legislature was aware of the medicinal effects of marijuana when that law was passed, and it’s extremely doubtful the legislature ever intended to punish patients with a deadly disease. It’s even possible that the medicinal effects of marijuana were unknown to them when that law was passed, since it is hardly a new law. Nevertheless, since the law exists, it will be enforced, even against people like Tom who are using marijuana strictly for medicinal purposes.

This raises a number of questions. Even if Tom is merely placed on probation, and even if he stopped smoking marijuana altogether, using Marinol to control his symptoms would result in violation of probation, since he would test positive for THC during required drug tests. If he fails a drug test while on probation, he will be incarcerated.

If he is incarcerated, he will not only not have access to the drug which he needs to survive without excessive suffering due to overwhelming nausea, vomiting, physical wasting, and extreme fatigue; but the South Dakota Department of Corrections will be forced to pay for the extremely expensive antiretroviral drugs which fight the virus as well as the Marinol, at a cost of thousands of dollars per month to the taxpayers, in addition to the increased cost of incarceration for a man with an infectious deadly disease. As you should understand after my explanation of how those drugs work, and how the virus works, missing even one dose of his antiretroviral drugs could be catastrophic for his health, since it would allow the virus to replicate until the drug was again built up to a therapeutic dosage. Yet in a prison environment there is no guarantee that he will receive his life-sustaining medications at all, much less receive them on the schedule those drugs demand.

Tom has said that he will not stop using marijuana, because it allows him to live a relatively normal life. Without it, his body is wracked with pain, nausea, and vomiting; he is unable to eat or drink, and thus his body becomes even more weakened, even more unable to fight the virus, and even more prone to the many opportunistic illnesses, any one of which could easily end his life. This is especially true if he is confined in a jail or prison facility, given that there are large numbers of inmates living in close approximation.

To incarcerate Tom Faltynowicz would therefore place his life at severe risk, and as such would clearly constitute cruel and unusual punishment, as prohibited by the Eighth Amendment of the US Constitution. Furthermore, it would serve no purpose to incarcerate him, since his crime is merely possession of a drug which allows him to live with his disease and to continue take the cruel medications which literally keep him alive. He poses no threat to anyone and he is not selling or otherwise distributing the marijuana, nor has it even been suggested that he is selling or distributing the marijuana. Rehabilitation is also not a valid cause for his incarceration, since he merely uses the drug for medicinal purposes, and thus he is not in need of rehabilitation.

Society would not be served by incarcerating Tom Faltynowicz. The interests of justice would not be served by incarcerating Tom Faltynowicz.

As such, justice demands that the court show mercy by giving Tom Faltynowicz a suspended sentence, no probation, and whatever fine the court sees fit, as long as it is within Tom’s ability to pay said fine.  The courts should also order the return of Tom’s property; police seized property such as lights, and not just marijuana and implements for its use.  Those lights  should be returned.

“Girls Gone Wild” founder victimized by “Judge Gone Wild”

In Celebrities, Censorship, Corruption, Courts and Justice System, Crazy Claims, Crime, Entertainment, First Amendment, Fraud, Law, Lies and the lying liars who tell them, Media, People in the news, Police State, Politics, Protest, Shine on you crazy diamond, Taxation on March 16, 2008 at 7:07 pm

Joe Francis / Girls Gone WildI am not a fan of “Girls Gone Wild”. In fact, I almost vomit every night when I’m trying to watch South Park and Reno 911, since that’s when most of those commercials seem to air.

The latest is “The Wildest Bar In America”, and the commercial shows young women engaged in sex acts with one another, in public. If you purchase that one with a credit card (so they can automatically send you more in the future), you get “Finally 18” for free. The voiceover for the latter video says, “These girls have been waiting for their chance to go wild!”

I’m sorry, but after seeing that commercial – which shows young women masturbating on camera – I’d guess they went wild long before their 18th birthday.

The thought which always occurs to me when I see those commercials is, I’m glad it’s not my daughter. I’m glad I don’t even have a daughter, because then I don’t have to worry about her getting sauced on Spring Break then going wild on camera. I cannot even imagine the horror of parents across this country when they realize their daughter has appeared in “Girls Gone Wild”, and especially the parents of those girls who actually appear in the commercials.

However, as much as I hate “Girls Gone Wild”, I feel that I must speak out against what happened to the man behind the videos.

Joe Francis, the founder of “Girls Gone Wild”, has been in jail for the last year, and could not even post bail to get out. It all started when some parents accused him of filming their underage daughters. Francis claimed they had identification, so he had no way of knowing they were underage and thus he had done nothing wrong. I believe him. After all, he has filmed literally thousands of young women, has made untold millions from doing so, and I find it very hard to believe that he doesn’t check identification. In fact, Francis apparently takes a lawyer with him, to make sure he doesn’t do anything to get himself into trouble. The attorney checks IDs, and has the girls agree to participate both on video and in writing. The video statement is made so that no one can claim they were too drunk or otherwise unable to give consent. Joe Francis is much smarter than people expect him to be.

At any rate, Francis refused to negotiate in a civil suit brought by the parents of those girls, and he was thrown in jail for it.

When I first heard this I thought, surely that’s not the real reason he’s in jail. After all, it was a civil suit, not criminal charges. However, sure enough, that’s exactly why he was in jail.

Then while he was in jail for not negotiating with parents trying to shake him down for a civil suit (let’s be honest, once again, in saying that the “Girls Gone Wild” had actually gone wild long before they ever met Joe Francis) the IRS came a-knockin’. It appears that they claim Joe owes millions in unpaid taxes.

I’d hate to be Joe Francis, with all those problems.

This past week, he was finally released from jail after serving 11 months with no bail on the civil contempt charge (though the tax evasion charges are still pending, and he will go to trial on those charges at a later date) and faced a judge in Florida on criminal charges of child abuse and prostitution, related to filming the underage girls (for criminal charges, all that matters is that they were factually under 18). He struck a misdemeanor no contest plea, the judge gave him time served, no probation, no fine, he’s free to go. The only condition was that “Girls Gone Wild” not film there again for three years. That shouldn’t be a problem, given that girls are going wild all over this great nation of ours.

The problem I see with this, putting aside my personal feelings about his line of business, is that the man should never have been in jail over a civil suit in the first place. Here’s the basic scenario: he got sued by angry parents whose daughters used fake IDS to claim they were of legal age, the judge told the parties to work out a settlement, he didn’t want to work out a settlement because he thought he’d done nothing wrong since he was actually the one defrauded, so the judge threw him in jail for civil contempt. Personally, I think the judge showed his personal bias in the case, by throwing a man in jail simply because he preferred for a jury decide if he had done anything wrong. I think Francis is right, and I seriously doubt a civil jury would find against him, given all the safeguards he had taken against filming underage girls.

The problem with this is that, at the time he was originally incarcerated, no jury had ever determined that he had done anything wrong, civilly or criminally, and the criminal charges against him were not even close to being capital crimes, so he was entitled to bail. Frankly, I get the impression that they just didn’t want him in their area, documenting the fact that their little girls are going wild.. Maybe one of the girls who went wild is the niece of a friend of a friend of the judge, who knows.

Overall, while I am definitely not a fan of “Girls Gone Wild”, I am a fan of the Constitution, and under the Constitution, what happened to Joe Francis should never happen to anyone.