Archive for the Law Category

America The Bankrupt (Jan. 17) Revisited (March 21, 2005)

Posted in Economics, Law on March 21, 2005 by e-commentary.org

On the domestic front:  The new bankruptcy reform bill may be a trigger for America’s bankruptcy.  The new bill makes it more expensive for someone who has no money to file bankruptcy.  Everyone mired in debt is now under the gun to file bankruptcy under the current scheme before the effective date of the new legislation in 180 days or to forsake the opportunity.  Debtor bankruptcy attorneys will be doing a land-office business filing petitions in the next six months.  The credit card industry that benefits from usurious interest provisions and late fees is protected by the new legislation.  However, the very industry that provided the “crack cocaine of the middle class” (Feb. 7) now may be hoisted by their own petard.

On the international front:  Japan, China and South Korea are approaching one trillion (T) in Yankee debt.  Japan is looking askance at China and South Korea; China at Japan and South Korea; South Korea at Japan and China.  Europe is looking East then West then East then West the East.  Each player knows that pulling the plug will produce devastating economic consequences; not pulling the plug will produce devastating economic consequences.  What does game theory suggest?  One country will concoct a convenient domestic political crisis to diversify out of American dollars or to simply quit acquiring dollars or American debt.

International Economic Seismic Activity (IESA):

Player:        Stake (Bs): Anxiety:

Japan         701.6  March 12-Prime Minister Koizumi seeks “diversity”

China          194.5

U.K.            163.0

Caribbean    92.5

Korea           67.7  Feb. 22- Central Bank thinking about foreign currencies

In addition, the Producer Price Index (PPI) is stirring and soon the Consumer Price Index (CPI) will accelerate in response.  The price of oil is driving up the PPI (John’s dear tractor is more expensive to fuel) and also the CPI (Jane’s dear SUV is more expensive to fuel).  Gas may hit $4 a gallon.  The Fed must raise interest rates to stave off inflation.  With inflation on the rise, the nominal interest rates must rise even more to provide a real rate of return.  Those half dozen Americans who have the discipline to save also have the knowledge to understand a ROI (return on investment).  The rising interest rates will tank the bond market.  The stock market is tanking of its own excess.  And few are concerned with domestic spending.  The body politic needs life support.  Congress will soon need to pass a Crisis Budget (CB).

“Strict Construction” Strictly Construed (March 14, 2005)

Posted in Law, Supreme Court on March 14, 2005 by e-commentary.org

“Strict construction” is a legal philosophy that construes every law and regulation to promote and advance the interests of rich white boys.

Its adherents urge the abrogation of all legislation and Constitutional developments since 1787, with desperately few exceptions.  The movement springs from a conviction that no good ideas have been propounded in over 200 years.  In addition, anything that worked poorly in the past is considered good enough for us today.  The Ninth Amendment to the Constitution may state:  “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The party faithful disparage this inconvenient language in part because it was not asserted until 1791.  Too late, they say.

However, in deference to this fundamental principle, a few newfangled notions are tolerated.  For instance, they contend that Blacks will not be treated as 3/5ths of a human being under the law.  With rises in the Consumer Price Index (CPI), they will be endowed by these creators as 7/10ths of a human being.  White women are to be accorded 3/4ths status; Black women are to be accorded 72.5 percent status.

Virginia proclaims that it is for lovers, but it wasn’t for Loving.  When a consenting Black adult and a consenting White adult sought to marry, they encountered a Virginia government edict precluding them from engaging.  In Loving v. Virginia (1967), the Supreme Court allowed the two to decide for themselves.  Nine souls on the Court spoke with one voice to reject miscegenation laws.  This type of clear thinking is anathema to the strict deconstructionists.  They want neo-activist judges to actively legislate against these legal developments.

However, the strict constructionists are not unreconstructed in their antipathy to all developments since 1787.  They condemn the Supreme Court in action but champion Supreme Court inaction.  When the Supreme Court had an opportunity a generation ago in San Antonio v. Rodriguez (1973) to provide adequate funding for public schools, the Court implicitly found that “separate and unequal” schools passed constitutional muster, although “separate but equal” schools perforce failed muster.  Later courts did make valiant efforts to equalize funding between poor kids and rich kids.

Advocates of the reactionary doctrine note that men’s and women’s bathrooms are still separate but equal.  Why not the schools and other public and private institutions, they suggest?  Strict constructionism is coming to a demagogue near you.

The disdain for miscegenation laws and anxiety over “separate but equal” treatment is still at play among concerned individuals.  Today, a California trial judge held that California’s ban on same-sex marriage is unconstitutional, comparing it to the miscegenation laws that once blocked interracial marriage and promoted “separate but equal” segregation.  Once again, the strict constructionists seek to keep litigating the issue and advancing unequal protection under the law.  The America antinomy is to proclaim equal protection under the law and to practice oppression.

The Courts, the California prison experiment and the Y Chromosome (February 28, 2005)

Posted in Law, Politics, Prison/Criminology, Race, Supreme Court on February 28, 2005 by e-commentary.org

California has tried with courage and innovation to do something about the problem of prison violence in its state prisons.  The Ninth Circuit said they did an acceptable job.  The Supreme Court recently dissented.

The state of California established a practice of providing a short-term delay before integrating a new or newly transferred inmate into the prison population.  The practice was not motivated by malice toward anyone and was undertaken with as much charity toward all as possible.  The practice was undertaken to protect the prisoner.

Mr. R. P. McMurphy, the philosopher and sports enthusiast in “One Flew Over The Cuckoo’s Nest,” observed that males really want to do two things in life – fight and write poetry.  This is known among well meaning social scientists and cultural anthropologists as the “F & F passions” or “F2 Passions.”  Cage a bunch of misfits and rascals and cattle rustlers and others who lacked an older, strong male influence in their youth and you will find that males revert to their atavistic pursuits.

California tried to abate the pastimes in the American prison system that make the Skull & Bones antics at abu Ghraib prison look like a Sunday school camping trip.  Republican jurispruds seek to outlaw consensual anal sex among males and also impose it on unconsenting males; those who violate the Republican prohibition will be sent to prison immediately.  Reducing the violence in America’s prison is problematic, but it is a problem that requires much more public attention.

The United States Court of Appeals for the Ninth Circuit, the “Wild West Circuit” or the “Niners,” is the largest (case load, population, geography, lattes and lassoes) and most entertaining of the federal courts of appeals.  The circuit encompasses the state-nation of California and other blue states (Washington, Oregon, Hawaii) that are part of the Western Province of the Blue Nation.  Some red states are members (Alaska, Arizona, Idaho, Montana, Nevada); the bottom half of the class makes the top half possible.  Decisions of the Niners are appealed to the Big Court, the Supreme Court, the “Supremes.”  The Niners and the Supremes have a running institutional hissy fit.  At times, there has been more talent and insight and understanding on the Niners than on the Supremes.  Even per capita.  However, the Supremes have the last say.

The thing involves Race, so things got dicey.  America is still desperately and frantically trying to figure out what to do with the R issue.  When matters involving R arise, all logic and clear thinking often goes to hell.

The forces of light (O’Connor, Ginsburg, Souter, Breyer and Kennedy) wrote the majority but flawed opinion for the Supremes.  Two years earlier, some of these justices were willing to grant deference to a graduate school of law (the University of Michigan Law School) but this year not to a graduate school of crime (the California criminal justice system).  The California criminal justice system is one of the affiliates of the criminal American justice system.  The majority stated that “[i]n the prison context, when the government’s power is at its apex, we think that searching judicial review of racial classifications is necessary to guard against invidious discrimination.”  In the prison context, the government’s power, however, is at its nadir.  The government does deny an individual his liberty interest.  However, the prisoners run the prison.  Commentators have remarked recently that the number of former convicts on the Supremes who could share their insights is at an all time low.

Justice Stevens reacted rather than reflecting by proposing a wooden rule.  The Dynamic Duo (Thomas and Scalia) contended that “[t]he Constitution has always demanded less within the prison walls.”  The Constitution must demand more within the prison walls.  The Constitution does not preclude the efforts and innovation undertaken by the California system.

The case has been shipped back to the Niners.  They should do the legal dance and allow lengthy briefing and conduct a protracted and windy oral argument.  After taking the matter under advisement and waiting long enough to raise the excitement to a crescendo, they should issue a lengthy treatise with enough footnotes to make it look like a completed crossword puzzle.  The decision should find that “gang violence and rape in prisons are bad; gang violent and rape in prisons should be abated; California’s practice of short-term delayed integration into the prison population has been strictly scrutinized; California’s practice advances the goal of abating gang violence and rape and therefore passes searching strict judicial scrutiny.”  Despite all the institutional and individual impediments, clear thinking may prevail.

Johnson v. California, No. 03-636.

Boycott Red America (January 3, 2005)

Posted in Blue States / Red States, Boycott Series, Economics, Elections, Immigration, Law, Philosophy, Politics, Society, Spending, Taxation on January 3, 2005 by e-commentary.org

The U.S.A. is engaged in an uncivil civil war, a war between the states of mind. At core, the dispute is between urban and suburban/rural Americas, although the voting boundaries are crudely demarcated by state and region. America revealed its true colors once again in the tragic events surrounding 11/2. Cooperation and compromise, albeit usually virtues in these situations, are now futile, counterproductive and self-destructive. A condominium divided against itself can stand. Appomattox condemns unilateral secession but condones voluntary realignment. We as a nation must summon the honesty and courage to hoist a national white flag and agree to realign the red states and the blue states. The blue states should form three Azure Provinces known as the United Provinces of America (U.P.A.). The red states should form the United States of Aggression or perhaps the United States of Fear, Ignorance and Greed (U.S.G.). The red states will demure when they realize that the reds cannot subsist without the massive subsidies funneled to them via the tax dollars confiscated from the blue states. Without a worldwide boycott of red America and diplomatic recognition of blue America, realignment is not possible.

After the realignment, reds can continue to live, work, travel and own property in blue country, and vice versa. Anyone uncomfortable living and working in Paris (Illinois) can travel to Rome (Georgia) and buy property; vice versa for those forced to relocate from Paris (Kentucky) to Rome (New York). For those of us who are out of place, relocating will be wrenching and discomforting. Everyone will be afforded dual citizenship and provided two passports. A red flag with 31 white stars in the field; a score of white stars on a field of blue. “In God we trust” versus “In reason we trust.” Clergy versus clerisy.

Creative individuals can move to U.P.A. and design energy-efficient transportation modules. Pedestrian ones can move to U.S.G. and drive gas-guzzlers in circles. Reds can continue to sell bazookas and grenade launchers at their local pharmacies and hardware stores so that the terrorist at the end of their cul-de-sac can arm himself without delay or an inconvenient background check. Blues remain free to take granddad’s 30.06 from the safe each Fall and wander in the woods in pursuit of the elusive white tail. God knows gays have already suffered enough, but if they really want to get married, they can move to U.P.A. and spark the most massive urban renewal ever accomplished in the history of humankind without visiting the exchequer. U.S.G. can ban with abandon even secular civil unions because everyone knows that queers woke up one Tuesday morning and elected to be that way of their own volition and not because of God’s design.

The blues can reaffirm basic libertarian principles and allow each citizen to control the person’s person. The reds insist on more government dictating personal decisions for others. As soon as a baby crawls out of the hospital and makes a misstep, the reds dispatch the human being with extreme prejudice. Government in the bedroom is far more corrosive of individual rights than in the boardroom. The blues get the original Bill of Rights, because the reds would not even recycle the paper. Custody of the Constitution is joint, although in a few legislative sessions there will be scant resemblance between the two amended versions. Without realignment, the entire U.S.A. will continue to decay and fester to second world status within a generation. With realignment, the Michigan-Ohio State football game immediately becomes an international event of epic proportions. Go Blue.

On March 19, 2003, George Bush triggered World War III. Sans casus belli. America cannot win it, America alone cannot stop it. A group of radical Christian extremists declared war on a group of radical Islamic extremists who were eager to reciprocate. Those who would rather be red and dead should not be afforded the opportunity to absolve the rest of us of our mortality. Bush is skillfully recruiting terrorists for the cause, although he soon will not be able to recruit his own palace guard. U.S.G. will be free to impose a front door Draft on its populace allowing the reds to prosecute the doomed Second Crusades for the next one hundred years. Operation Iraqi Liberation alone will bestow thousands of American deaths, seven-fold that number of disfiguring and dismembering casualties, and a direct economic cost of half a trillion in two years. More than 150,000 innocent Iraqi civilians and brave red-blooded Iraqi freedom fighters will die doing what any red- or blue-blooded American would do if our country were invaded without provocation. Each Iraqi death produces a hydra effect because two more Iraqi patriots commit their lives to the cause.

The reds delude themselves into believing they hate us for who we are; they hate us for what we are doing. The current version of the Constitution does not say: “We must destroy the village to save it.” However, America is deploying tax dollars to destroy the villages and then committing tax dollars to rebuild them. The “Economics of Destruction and Reconstruction 101” is an emerging field. The cost of reconstruction will be twenty-fold the still escalating and untold cost of destruction that we are not being told. Both Fallujah and Flint (Michigan) are being destroyed for no purpose, although Fallujah is slated for urban renewal with a modern subway system and above ground swimming pools. The Secretary of Offense is not astute enough to take one of the few insightful pages from the Vietnam playbook by declaring victory and getting out. With the fires ignited by the U.S.A., the current Dien Bien Phu III will be a mere sideshow and a forgotten incident in a conflagration that the U.S.A. will not be able to lose gracefully.

Use by the U.S.A. of tactical nuclear weapons in the form of spent uranium threatens to beget more nuclear activity. Individuals in the physics departments and in the biology departments of this planet pose a far more devastating threat than kids throwing stones at invaders using nuclear weapons to destroy their homes. At home, the systematic and willful conspiracy to bankrupt the public fisc is a high crime and misdemeanor that does little “to promote the general welfare.” A ten trillion dollar debt should be unconstitutional and alone grounds for immediate impeachment. Taxing to match spending is at least balanced and responsible. Only the reds seem charmed by these prospects.

By contrast, U.P.A. can reaffirm international law and the Geneva Conventions, issue a statement of non-participation in the Second Crusades, and execute a formal memorandum of re-engagement with the world. U.P.A. can assume one of the permanent seats on the Security Council without objection because the reds want nothing to do with U.N. pantywaists. U.P.A. must be liberated and divested to participate with and compete against the two rising colossuses that will define and dominate this century China and the European Union. U.P.A. will “provide for the common defense” by undertaking actions that contribute to the security and well being of the Provinces and the stability of the world. The Blue Provinces could unite with the E.U. to create the Transatlantic Alliance. With a mix of carefully calculated battles cum exeunt and a few shrewd modus vivendi, U.P.A. and the other two political empires may be able to limit or eliminate the causes of dissatisfaction that lead a desperate and rational person to employ terrorist techniques.

The U.S.A. has rarely been more vulnerable or the world less secure. The ruling ayatollah and his cabal of radical religious fundamentalist fanatics in Washington will not tolerate free elections, peaceful regime change or geographic realignment in America. Their devoutly anti-intellectual and anti-intellectually devout fans are in lockstep. However, they say that freedom is on the march. Little Napoleon motivated his own [al] Queda, his base, to continue on the path to world domination or destruction, whichever comes first. The world can and must just say no to the war criminal and his clutch of chicken hawks. Uniting one’s foes and dividing one’s friends (and countrymen) is not sagacious. With a few exceptions, the McMedia of every hue in America are effete, craven, servile and unavailing, but they are pretty. The last hope is for private citizens to unite the world and enlist its assistance to conduct a world economic plebiscite.

The world must boycott red America for one year. No visits to red states or contributions directly or indirectly to their economies. No vacations or holidays or conferences or conventions. Cranberries from the Eastern Province (Massachusetts and New Jersey), the Central Province (Wisconsin) and the Western Province (Washington and Oregon) should be imported and served once a day to support the peace movement. Washington apples but not Virginia apples. California oranges but not Florida oranges. Don’t mix apples and oranges. Oregon pinot but not Tennessee mash. Minnesota corn but not Iowa corn. Wisconsin beer but not Colorado or Missouri beer. Skip Alaska and explore New England and then Hawaii next year. Tour Washington D.C. and find lodging in the city or in Maryland. Spend too much time and money in New York. Circumnavigate the Adirondacks and the Sierras and circumvent the lower Appalachians and the eastern Rockies.

Tender Euros, the peace chits, to blue businesses to symbolize Europe’s permission slips for peace. After some initial resistance, blue Americans may adopt the Euro as their currency. English is the emerging medium of communication for the E.U.; the Euro rightly should emerge as the medium of exchange for the U.P.A. By 2006, the Euro will be the new two dollar bill. Vote for peace in the three Azure Provinces. We can all use Euros to buy the “English/Mandarin” and the “English/Cantonese” dictionaries and launch them to the top of The Beijing Times Best Seller List. Demand that all imported produce and products from the U.S.A. include a state of origin stamp. Provide your kinder with outline maps of the U.S. and crayons of rojo y azul, rouge et bleu, rosso e azzurro, or rot und blau to teach them the boundaries of the two Americas. Send letters and e-mails to the respective secretaries of state and convention bureaus and inform them that you are boycotting the red states.

On a grander scale, if the central banks in Europe (ECB), Japan and China create a true Coalition of the Willing and demand that the U.S.A. withdraw from its international excursions or face complete withdrawal of all financial support for and funding of the U.S.A., there will be change. Those who carefully save in Frankfurt (Germany) can save those who spend wildly in Frankfurt (Kentucky). The Coalition must implement this new and improved version of the Marshall Plan and impose a revised Containment policy to restrain and quarantine the red menace in this rogue nation. International economic sanctions will succeed against the American war machine impatient to unleash more of its weapons of mass destruction against the world. A trillion dollar (Euro?) economic impact in one year likely will garner some attention.

During its glory days, America was a generous and magnanimous Republic that came to the world’s aid in times of need and trouble in so many ways. We sane Americans now must ask the rest of the world to come to our aid. Diplomatic recognition of blue American is critical. You can save blue America and the rest of the world, and red America. Boycott red America now. Billions of lives and livelihoods are at stake. In due course, the boycott can be finessed to focus on the specific enterprises that advance the apocalypse. Thank you kindly in advance for your assistance and sacrifice in saving the world.