Parsing words in the Constitution to make them meaningless

The questions being raised as to whether the national health care reform bill is constitutional should give pause to those who hold the Constitution dear, if there are any of those befuddled folk left.

Sen. John Ensign tossed out in his speech on the Floor of the Senate Tuesday questions about whether requiring people to purchase health insurance violates the taking clause of the Fifth Amendment — an argument worthy of thorough judicial review.

But I’m still pondering the whole original intent of the general welfare clause and whether it even allows the federal government to basically redistribute income under the guise of the “general” welfare.

How can the Louisiana Purchase and the Omaha stakes — giving Louisiana extra money due to Katrina and exempting Nebraska from paying its portion of Medicaid, while every other state must tax its citizens to cover this unfunded mandate — jibe with the welfare clause?

I know Justice Benjamin Cardozo folded, spindled and mutilated that qualm during the New Deal by upholding the old age pension and unemployment compensation portions of Social Security. He dismissed classic arguments about the differences between particular and general welfare by granting Congress “middle ground” and room play around in the “penumbra.”

Thomas Jefferson laid down the anti-penumbra argument rather precisely in 1791:

“For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.

“To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.”

To get a bit more analysis of the meaning the general welfare clause I turned to Seth Lipsky’s new book “The Citizen’s Constitution: An Annotated Guide.”

He quickly reminded of a little grammatical chicanery attempted at the time of the drafting of the Constitution by one Gouverneur Morris, who plotted to change the comma after the word excises to a semicolon, precisely for the purpose of expanding the spending power of Congress.

The paragraph in question reads, “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;”

Lipsky noted, “Had Morris won his semicolon, the spending power would be separate and without limitation.” Oh, the power of a tiny dot.

Lipsky, a former editor at The Wall Street Journal, also singled out the writings and views of Alexander Hamilton, who said appropriation should be “general and not local;” James Madison, who vetoed the Bonus Bill; James Monroe, who vetoed the Cumberland Road Bill; Andrew Jackson, vetoed the Maysville Road bill.

As for the phrase about “all duties, imposts and excises shall be uniform throughout the United States,” Lipsky notes this too is pretty much a lost cause. He writes that the Supreme Court dismissed this silly notion by writing, “It was settled fairly early that the Clause does not require Congress to devise a tax that falls equally or proportionately on each State.”

Nebraska and Louisiana, over in the penumbra, have their fair shares of health reform costs picked up by Nevadans. Uniform means what Congress says it means.

One senator’s deal is another’s bribery

The Washington Post story in the Review-Journal Sunday reported that Sen. Harry Reid had netted the 60 votes needed to move forward on health care reform. The last holdout was Ben Nelson of Nebraska.

To sway the reluctant senator, the Post said, “Nelson also secured full and permanent federal funding for his state to extend Medicaid eligibility to everyone below 133 percent of the federal poverty level. The bill would require all states to do so, but Nebraska alone would not be required to pay a portion of the additional cost after 2016.”

Sound familiar? That is the similar to the deal Reid temporarily cut for Nevada and three other states back in September. At the time, even Democratic Senators balked.

“Under Mr. Baucus’s original proposal,” The New York Times reported then, “the federal government would have paid 87 percent of the new costs in Nevada. Under the modified version, the federal government would pay 100 percent of the new costs for the first five years. Severe financial problems have prompted Nevada and other states to cut spending and furlough workers, and some states have even considered releasing prison inmates to save money.”

The Review-Journal quoted a Reid statement at the time,  “I promised the people of Nevada that I wouldn’t support any health insurance reform proposal that wasn’t good for our state, and I meant it.”

Some senators balked then at the favoritism. Will they again? Or has the deal been struck?

Oh, and is that state requirement to pick up the tab for Medicaid counted by the CBO in its deficit projections?

Saints and heretics debate climate change scripture

As President Obama limps home from Copenhagen with the noncommittal commitments to kind of keep an eye on greenhouse gases but no treaty, the actual debate over global warming might be heating up in a positive way.

On Friday the Washington Post carried an article by the oracle of global warming and inventor of the 1999 hockey stick graphic Michael Mann explaining away the rhetoric, bluster and threats in those purloined e-mails from the University of East Anglia.

On the same day, The Wall Street Journal printed an op-ed by global warming doubter, not really denier, Patrick Michaels, of whom, in one of those aforementioned e-mails, a Lawrence Livermore National Laboratory scientist remarked, “Next time I see Pat Michaels at a scientific meeting, I’ll be tempted to beat the crap out of him. Very tempted.”

Michaels explains how the acolytes to global warming have manipulated the “bible” of atmospheric science through intimidation and terminations.

Mann uses his newsprint space to explain away the “trick” and the “hide the decline” comments and debating Sarah Palin rather than real scientists.

Michaels notes that Mann and others did much car for a paper he published in “Climate Research” in 2002 arguing the global warming dogma overstated the effects of carbon dioxide. In response, according to Michaels, Mann called on his colleagues to put “Climate Research” out of business.

“Perhaps we should encourage our colleagues in the climate research community to no longer submit to, or cite papers in, this journal,” Mann wrote in one of the e-mails. Half the editorial board of “Climate Research” resigned.

Another editor at another publication, Yale’s James Saiers, also was soon gone, says Michaels.

“The result of all this is that our refereed literature has been inestimably damaged, and reputations have been trashed,” concludes Michaels.

Meanwhile, Mann repeats the line about consensus, remarking, “The scientific consensus regarding human-caused climate change is based on decades of work by thousands of scientists around the world. The National Academy of Sciences has concluded that the scientific case is clear.”

Must be scripture.

This ain’t my first rodeo

Trevor Brazile ropes and ties a calf in 8 seconds.

The closest I ever came to rodeoing was the time Grandpa Hicks put me on Skeeter and sent me down to the lower pasture to bring back the cows for the evening milking.

Now, I say pasture in the kindest North Texas sense — a relatively open area dotted by scrub oak, mesquite, nettles, sandburs, cockleburs, goatheads, needle and Johnson grasses, populated with scorpions, red ants, sidewinders, diamondbacks, jackrabbits and coyotes. It was a place where the butcherbirds hung their prey, young snakes, on the barbed wire (I was a grown man before I learned it was barbed wire and not Bob wire.) fence to keep the other vermin from stealing their victuals. Etched throughout this verdant landscape were gullies as deep as a man on horseback.

It hadn’t changed a whole heck of a lot since Gen. Philip Sheridan rode through in 1866 and panegyrized the place by proclaiming, “If I owned Texas and Hell, I would rent Texas and live in Hell.”

My grandparents churned their own butter and smoked their own meat. Grandma Hicks could snag a fleeing pullet by the leg with a length of wire and wring its neck in seconds, leaving the headless bird to run around for a minute or so till it could be picked up and plunged into boiling water, then plucked for a fried chicken dinner with biscuits, gravy and all the fixin’s.

At night as we listened to radio with the glowing De Forest tubes, the only thing to read was the Bible and the Sears & Roebuck’s catalog, which, when the new one arrived, would be, shall we say, recycled.

Every year we’d go to the Chisholm Trail Roundup in Nocona. This was back when the factory still made boots and leather goods, like my three-fingered baseball mitt that had to be oiled and tied around a baseball to form anything resembling a pocket. Every year they’d introduce Miss Enid Justin, the owner of the boot company. It was always “Miss” Enid Justin.

The Chisholm Trail Roundup had no lasers or fireworks or ear-splitting rock music, but it did have a booming-voiced, smart aleck announcer who would trade snappy patter with the rodeo clown during the bull riding events. We sat on cold, splintering wooden bleachers in boots and jeans and hats. Not in an 18,000-seat arena.

This was back when the stars of the sport were Casey Tibbs and Jim Shoulders.

Today at the National Finals Rodeo at the Thomas & Mack the star is 33-year-old Wise County roper Trevor Brazile. Unlike most in the sport Brazile has earned a couple million dollars in prize money over the years, as well as a barnful of gold buckles. Most cowboys are lucky to cover their expenses — pickups, horse trailers, horses, tack and gear, as well as fuel for vehicles, horses and selves.

On Saturday, our rodeo reporter Jeff Wolf, who also covers auto racing, wrangled me a press pass and took me down to the pressroom in the bowels of the T&M to meet the assorted rodeo officialdom. Along the way we bumped into Clark County Commissioner Tom Collins and T&M manager Pat Christensen. I was just there to show the flag for the paper, to show the rodeo the newspaper welcomed them, so maybe they’d think of us when there are news scoops to reveal.

I shook hands with and joked with everyone from the head honcho to the doctor to the hangers on. But I had one boon to ask. If Trevor Brazile happened by, might I get a chance to shake his hand and say hello?

Just before the rodeo was to start, they brought through the pressroom mild-mannered, soft-spoken, polite-as-hell Brazile. I shook his hand and wished him luck from a Wise County expatriate, who, like a kid collecting autographs, could now tell his family back home he’d actually met the star of the rodeo circuit. He is from Decatur. I am from Bridgeport, 11 miles down the road, and Decatur’s arch rival in high school sports. Perhaps, this being Las Vegas and all, you’ve heard that old craps shooter’s plea: “Eighter from Decatur, county seat of Wise.”

As a lagniappe, I also shook the tiny, soft, splayed hand of bashful 2-year-old Treston, who, like his dad, was dressed in black from hat to boot. If I live so long, perhaps someday I can say I met him when …

Wolf talked the rodeo communications director into letting me sit in the press box up at arena side for a couple of go-rounds, where I dusted bits of arena floor kicked up by passing riders off my program and watched poor Trevor Brazile finish almost out of the money in both calf (I refuse to call it tie-down roping as a sop to the animal rights whiners.) and team roping.

The closest I ever came to that kind of rodeo action was because I did not know Skeeter was a cutting horse. I think I was about 10. For the purposes of this story and an aversion to too much self-embarrassment, I’ll not admit to being any older. Only my mother could proffer a contrary accounting, and she doesn’t own a computer.

So, when I got down to the pasture where that half dozen or so head of docile milk cows were grazing, either through some unintended signal from me or his own instincts, Skeeter decided that one suckling calf keeping devotedly near its mother just had to be cut out of the herd for purposes only Skeeter could fathom.

In the Texican lexicon skeeter is short for mosquito, another blood-sucking denizen of those parts, which darts about in the air, changing directions so fast as to defy the laws of physics. If you’ve not had the pleasure of seeing one work, that’s what a good cutting horse does. It dashes and stops and cuts back, doing whatever it takes to prevent that calf from doing what it instinctively wants to do, rejoin the rest of the herd.

Normally, most people get to see this performance in a nice flat arena from comfortable seats. Did I mention the gullies? Somehow I managed to stay on Skeeter’s back instead of flying off under the force of kinetic energy as he made all those hair-pin turns and stops.

After awhile, Skeeter decided I did not know what the heck I doing and allowed me to point he toward the barn, leaving behind that calf and all the milk cows with bulging udders. Grandpa was so angry I almost wished I’d tumbled off into a gully so I could at least have Grandma’s sympathy.

As I told the communications director, this ain’t my first rodeo.

Transparency? Or transparent political ruse?

President Obama promised the most transparent administration in the history of the universe. I read the memos. Since then, he’s not quite lived up to the promise, including balking at the reporter shield law and backtracking on the release of detainee interrogation photos.

Now Obama appointee John Berry, head of the Office of Personnel Management, is promising transparency, too.

“I believe we must hold ourselves and the government to a higher standard,” Berry writes in a Nov. 5 memo, “one that honors and supports the President’s strong commitment to a Government that is transparent and open.”

Berry is requiring any appointment of a former political appointee — anyone who held such a job in the past five years instead of the customary year before an election (The fact this covers of the entire Bush administration is surely coincidental) — get prior approval from his office before being named to a competitive civil service job.

The conservatives at Redstate.com smelled a rat and penned a piece headlined: “Obama Administration Intends to Purge Republicans From the Civil Service.”

“Under his new rules, made retroactive for five years, the Office of Personnel Management will examine civil service employees who got their start as political appointees in the Bush administration and terminate those employees,” writes Erick Erickson. “The order is retroactive to 2004, that moment when a number of Republican congressional staffers and others sought to embed into the second Bush administration right after the election.”

I’m not sure the memo requires review of past employees or simply new hires starting Jan. 1, but a loyal bureaucrat could easily misinterpret.

The liberal Media Matters quickly jumped to the defense.

“In fact, the OPM memo does nothing of the sort,” Adam Shah writes. “It merely beefs up current OPM rules aimed at preventing political appointees from ‘burrowing in’ to the civil service, thereby receiving the job security benefits that civil servants — but not political appointees — receive. While the memo states that agencies must seek permission from OPM to hire people as civil servants if they have been political appointees ‘within the last five years,’ nothing in the memo creates authority for anyone to fire current federal employees. Therefore, the OPM memo does not ‘purge’ anybody.”

OK, but if this is no big deal, why the need for the memo in the first place? There may not be a purge but it sure sounds like a hurdle for future civil service jobs for Republicans. A job can’t be denied merely for political affiliation, but everyone knows a lot of excuses can found by true believers.

Rush Limbaugh, of course, found a problem with the memo.

Gawker turns tables on press with public records request

You live by the public records request, you die by the public records request.

John Cook at a Web site called Gawker has turned the tables on the press, especially The New York Times.

Cook and/or Gawker filed a public records request for e-mails between former New York Gov. Eliot Spitzer’s press aides and the press about the time Spitzer was being outed as Client No. 9 in a prostitution ring investigation.  What was found was a remarkably accommodating press.

Gawker also obtained e-mails between the press and flacks for the current governor, David Paterson.

This is a snippet of what Cook writes about the findings:

“And they give the lie to the myth of the vigilant watchdog press that keeps the government on its toes. Next time you hear New York Times editor Bill Keller claim that newspapers are uniquely situated to do the “hard, expensive, sometimes dangerous work [of] quality journalism,” remember that his reporter broke the story of Spitzer’s dalliances with prostitutes. But also remember the time his reporter e-mailed the Gov. Paterson’s flack to request permission to call Paterson’s former mistress.

“This first installment documents the shocking amount of control that Keller’s Times allowed Anderson, a former Good Morning America producer and PR veteran of the Clinton White House, to exercise over his paper’s coverage. After bringing Anderson’s world down around her head by breaking the story, Times reporters previewed portions of their stories with her before publication, asked for her permission before contacting sources, and let her tell them how to characterize its reporting in the paper.”

It will be interesting to see what else those 1,300 pages of e-mails reveal.

Memo to self and staff: Be careful what you write to people whose e-mail is subject to public records requests.

Shield law compromise is better than nothing

After the White House earlier scuttled a proposed reporters’ shield law by demanding the final say should lie with the executive branch, it looks like a compromise has been reached that most can accept as better than the status quo of jailing reporters for refusing to reveal sources.

Lucy Dalglish, the executive director of the Reporters Committee for Freedom of the Press, was quoted as saying, “This is a huge deal, but it’s not a done deal, and quite honestly, until all of the media coalition members sign off on it, it’s not a deal.”

Under the compromise reached between the White House and Senate Democrats, judges would be the final arbiter in civil and criminal cases. In civil cases the party seeking information from a reporter would bear the burden of proof. In criminal cases the reporter would have to prove that the public interest in free flow of information out weighs the needs of prosecutors for the information.

A judge would not be able to block a reporter subpoena if prosecutors show a terrorist attack could be prevented or there would be significant harm to national security. How strong that evidence might have to be remains to be seen.

In an editorial today, The New York Times gave a tentative endorsement.

Now it is up to Sen. Harry Reid to put the measure to a vote.

 

There is no compromising with fanatical, irrational, militant religious zealots

Hillary Clinton in Pakistan this week. (AP Photo/Mansoor Ahmed)

 

The Obama administration is a little late to the party. While this week Secretary of State Hillary Clinton and others are speaking out against a U.N. resolution aimed at fighting so-called defamation of religions, an earlier compromise hatched by the administation gave up too much ground.

Michael Posner, the assistant U.S. secretary of state for human rights, democracy and labor, worked with Egypt to draft compromise language that condemns religion-oriented harassment and discrimination. He has been quoted as saying the administration wanted to distinguish between defamation and harassment.

Marci Hamilton

FindLaw.com columnist and law professor Marci Hamilton argues the administration bent over too far.

That compromise “expresses its concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative racial and religious stereotyping of religions and racial groups continue to rise around the world, and condemns, in this context, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, and urges States to take effective measures, consistent with their obligations under international human rights law international human rights, to address and combat such incidents …

“Recognizes the positive contribution that the exercise of the right to freedom of expression, particularly by the media, including through information and communication  technologies such as the Internet, and full respect for the freedom to seek, receive and impart  information can make to the fight against racism, racial discrimination, xenophobia and related intolerance and to preventing human rights abuses, but expresses regret at the promotion by certain media of false images and negative stereotypes of vulnerable individuals or groups of individuals, and at the use of information and communication technologies such as the Internet for purposes contrary to respect for human rights, in particular the perpetration of violence against and exploitation and abuse of women and children, and disseminating racist and xenophobic discourse or content …”

Clinton was quoted this week as saying Monday, “Some claim that the best way to protect the freedom of religion is to implement so-called anti-defamation policies. … I strongly disagree. The protection of speech about religion is particularly important since persons of different faiths will inevitably hold divergent views on religious questions.”

But Hamilton notes that Clinton also has been less firm.

“According to Secretary of State Hillary Clinton,” Hamilton writes, “the original proposed resolution against religious defamation was unacceptable to the United States because ‘[t]he protection of speech about religion is particularly important since persons of different faith will inevitably hold divergent views on religious questions.’ However, according to The Associated Press, Clinton also ’said that the United States was opposed to negative depictions of specific faiths’ — which sounds very much like an anti-free speech position.”

The professor says the administration, instead of acceding to any compromise, should have attacked the resolution head on, reminding the world what Americans think of militant Islamists who wish to destroy American and American values.

“To take a position in favor of suppressing speech about religions — especially at this time in history — is to choose to put aside one of our most important weapons against death, oppression, and tyranny,” she writes. “Offering a ‘middle ground’ cedes far more ground than the Islamic countries supporting the resolution– especially those who are host to militant Islamicists yet fail to effectively combat them — deserve on this point.”

Hamilton calls the administration a disappointment when it comes to freedom of religion and free speech.

You can’t compromise with irrational fanatics, and the best way to combat them is freely and fully attack their premises as every available opportunity, until the world shuns them and their false beliefs.

College campuses unwelcoming to free speech advocate

Dutch politician Geert Wilders speaks at Temple University on Tuesday, Oct.. 20, 2009, in Philadelphia. (AP Photo/H. Rumph Jr.)

How many times have you heard someone say: “I’m totally supportive of free speech and the First Amendment, but …”?

A couple of days ago, Dutch lawmaker Geert Wilders spoke at two universities, Columbia and Temple, and got precisely that reaction. The question and answer session at Temple was cut short when the crowd turned ugly and Wilders’ security team had to usher him out of the room.

Wilders is the maker of a film called “Fitna,” which juxtaposes quotes from the Quran with images of terrorism, beheadings and speeches of Islamic clerics calling for violence against non-Muslims.

Wilders lives under 24-hour police protection because of threats resulting from the making of his movie and speeches critical of Islam. He faces prosecution in his own country. He was barred from entering Britain until recently.

He was invited to Columbia by a campus Republican organization that felt obligated to apologize for Wilder’s speech afterward.

“We didn’t invite him to talk about his views on Islam,” the Republican students wrote in a statement, noting that the club “does not in any way endorse” his views.  “We find the fact that he spent so much of his speech talking about those views regrettable, but he did explain that those views play a part in his concern for free speech.”

In a Columbia campus newspaper, Adel Elsohly, a graduate student and adviser for the Muslim Students Association, penned an op-ed endorsed by a dozen student groups, including the campus Democrats club.

He first made the obligatory homage to free speech, but then wrote, “Wilders’ speech, while beginning as a discussion of free discourse, soon devolved into little more than an open, vicious attack on Islam and Muslims, claiming that the ultimate goal of Islam is to conquer the world and forcibly impose itself on the conquered.”

He concluded: “Don’t we all deserve freedom from fear?”

Freedom from fear? When, just perhaps, there is something to fear?

In the Temple student paper a Josh Fernandez wrote, “It’s not that Temple students didn’t want Wilders to exercise his right to ‘tell people what they do not want to hear,’ but they didn’t want to hear hateful rhetoric, which — instead of proposing a diplomatic solution — proposed the eradication of a religious group.”

I don’t Wilders ever called for eradication.

I could not find a transcript of Wilders’ recent speeches but I did find one from earlier in the year in California. He paints an interesting picture of what results when one exercises “free speech” in Europe these days.

“Whether or not I end up in jail is not the most important issue,” he says in his speeches. “I gave up my freedom more than 4 years ago. I am under full-time police protection ever since, because of death threats from Muslims and terrorist groups linked to Al Qaeda. In the last few years, I lived in different safe houses, army barracks and yes, even in prison cells in order to be safe. But it’s not about me, it is not about Geert Wilders. The real question is: Will free speech be put behind bars?

“We have to defend freedom of speech. I propose the withdrawal of all hate speech legislation in Europe. I propose a European First Amendment. In Europe we should defend freedom of speech like you Americans do.”

Toward the end he launches into this Churchillian admonition:

“My message to those who oppose our fight for freedom is as follows.“We will never compromise on freedom.
“We will never compromise on liberty.
“We will never appease to Islam.
“We will never give in, never give up, never submit to totalitarianism again.”

But those words are not welcome on U.S. campuses, where multiculturalism reigns, where any strong language is labeled “hate speech,” even if it is true.

FOIA: We all want to know what tunes are torture

Now here’s a Freedom of Information request I think we can all get behind.

Some musicians have filed an FOIA request for a list of all the music used to “torture” prisoners at the Guantanamo Bay detention camp.

Don’t we all want to know what the psych analysts from the military think are the tunes so irritating, so grating, so annoying that merely playing them for hours on end would cause the world’s worst terrorists to spill their secrets and forgo martyrdom rather than endure continue aural bombardment?

Members of Pearl Jam, R.E.M., Nine Inch Nails, Rage Against the Machine and Roots this past week formally filed the request.

“The fact that music I helped create was used in crimes against humanity sickens me,” Tom Morello, formerally of Rage Against the Machine, is quoted as saying by The Washington Post. “We need to end torture and close Guantanamo now.”

“We have spent the past 30 years supporting causes related to peace and justice – to now learn that some of our friends’ music may have been used as part of the torture tactics without their consent or knowledge, is horrific,” R.E.M. said in a statement quoted by The New York Times. “It’s anti-American, period.”

I suspect a number of parents might agree with them.

The use of loud music, though the military insists it was never played as loud as it is at live concerts, is not new to the arsenal. When Manuel Noriega was surrounded during the invasion of Panama, loud rock music was used to keep him awake and allegedly to prevent parabolic microphones from picking up conversations.

According to the Times, one of the detainees has said “excruciatingly loud western rap and Arabic music” were played during detention — including recordings by Metallica, Britney Spears and even from Sesame Street. No Barney the dinosaur?

Reminds one of the line from that Bruce Willis movie “The Last Boy Scout.” The bad guy says, “You think you are so (expletive) cool. But just once, I would like to hear you scream in pain …”

Willis replies in deadpan, “Play some rap music.”

I can’t help but wonder if there is an ulterior motive here, and whether some of these guys will be disappointed if their tracks are not on the list.

Just think of the potential sales of the compilation album: “Music to Torture By.”

That list is definitely a public record we all should have access to … for various reasons.