Bill of Rights II.

 

The Articles of Confederation provided a poor sort of national government. The “United States” received scant respect either from foreign or state governments.  The men who authored the Constitution were determined to correct this fault.  However, they knew that the great majority of Americans feared the power and ambition of any central government.  Like the British monarchy, even the most “liberal” government might become tyrannical.  For example, a government might seek to abolish slavery in the Southern states merely because a numerical majority found it abhorrent.

Consequently, James Madison designed a government based on the separation of powers.  The executive, the legislature, and the judiciary would be co-equal branches of government.  Each branch would work to hold in check the pretensions of any over-mighty individual branch.[1]

Some delegates to the constitutional convention in Philadelphia worried that these provisions did not go far enough in insuring individual liberty.  Elbridge Gerry and George Mason proposed addition of a bill of individual rights.  This was rejected.  Later, Richard Henry Lee proposed that a bill of individual rights be added to the Constitution.  This, too, failed.

James Madison had argued against any bill of rights.  He believed that such a bill would do no good against a “republican” government based on popular sovereignty.  That is, the “people” would brook no opposition from a minority.  Furthermore, a government might interpret a Bill of Rights as stating the maximum, rather than the minimum, liberties of the people.  However, during the ratification process it became apparent that many ordinary citizens shared the reservations of Gerry, Mason, and Lee.  Essentially, they believed that even the most “liberal” government might become tyrannical over time.  Madison had argued that no bill of rights need be included because the division of powers and the conflict between interest groups would hold tyranny at bay.  This argument failed to persuade many of his readers.  The promise to add a Bill of Rights then became a bargaining chip in the effort to persuade state conventions to ratify the Constitution.  Six states recommended that a Bill of Rights be adopted once the Constitution had come into effect.  There were only 13 states then, so…

Madison abandoned his opposition to a Bill of Rights.  He wrote his own.  He offered these to Congress in June 1789.  He proposed to splice-in Amendments One through Five within the Constitution itself in Article I, Section 9, between Clauses 3 and 4.   Clause 3 bans Bills of Attainder.  Clause 4 bans direct taxation except equally according to the census.  In short, Madison intended that the Bill of Rights be individual rights.

Added instead as an appendix to the Constitution, they were adopted by Congress and ratified by the required number of states by December 1791.  Critically, the Ninth Amendment stated that “The enumeration of certain rights shall not be construed to deny or disparage others retained by the people.”  In this way, Madison responded to his fear that a tyrannical government might treat a Bill of Rights as a maximum statement of the rights of individual citizens.

Subsequently, the courts, including the Supreme Court, held that the “right of the people” referred to the rights of individuals.  Freedom of religion is an individual right.  Freedom of speech is an individual right.  The freedom to petition for redress of grievances is an individual right.  The right to be safe from unreasonable search and seizure of papers is an individual right.  The right to not be compelled to testify against oneself in a court of law is an individual right.  The right to trial by an impartial jury is an individual right.  The right to not suffer cruel or unusual punishments is an individual right.  God save the United States of America.

[1] Although that left the danger that two branches might, for their individual reasons, gang-up on the third branch.

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Bill of Rights I.

English people, including the Anglo-Americans, understood their history as the product of a bitter struggle between tyranny and freedom.  Stuart absolutism had sought to restrict the rights of Englishmen.  This led to the English Civil War, the execution of King Charles I, and the republican Protectorate.  The Stuarts had been restored in 1660, but had acknowledged the role of Parliament and the laws as guardians of the rights of Englishmen.  King James II (r. 1685-1688) had tried to tip the balance toward French-style absolutism during his brief reign.  This had triggered the Glorious Revolution of 1688, while the constitutional fruits of that revolution had been harvested by the terms of the Hanoverian Succession in 1714.

Britain’s American colonies, and New England in particular, were peopled by the descendants of anti-absolutist Englishmen of the mid-17th Century.  The Englishmen who did not migrate had fought the English Civil War and created the republican Protectorate government.  The two groups shared many ideas.  These ideas were in some respects, pre-Enlightenment, rather than Enlightenment ideas.  John Locke occupied a central position for both strains of thought.  Locke had argued that a “social contract” bound both governors and the governed.  If either party broke the contract, then the other party was not bound to comply with the terms of the contract.  A tyrannical ruler had no legitimate claim on the obedience of his subjects.

That fear of a strong central government had arisen from these earlier experiences.  In the 1760s, the Americans had still seen themselves as Overseas Englishmen.  They still possessed the rights of Englishmen.  Those rights, in their understanding, included the right to be taxed by their own elected representative and the right be tried by a jury of their peers.  Both of these rights had seemed threatened by new taxes imposed by a British parliament elected only by British voters and by the Admiralty Courts appointed by the Crown and operating without juries.  As early as the Stamp Act Crisis, a handful of Americans had seen the measures as the leading edge of an effort to subjugate the colonists to absolute government.

In these circumstances, resistance offered the best path to preserving existing freedoms.  Colonial legislatures had denied the right of Parliament to impose the Stamp Act, then organized boycotts of British goods, and worked-up mobs to intimidate potential stamp distributors.  The organizers of this violent intimidation then went on to create the Sons of Liberty as a continuing resource.

The threat of superior military force added another dimension.  Until the French and Indian War (1756-1763), Anglo-Americans had defended themselves—and occasionally made offensive war—through their militias.  These were call-ups of all able-bodied and self-armed men in every Middlesex village and farm.  Anglo-Americans associated “standing armies” with the expansion of absolutist/tyrannical government like that in France.  Paranoia added another dimension.  After the defeat of the French, the Quartering Act had required the colonists to house British soldiers.  If the foreign danger had passed, why did Britain need to keep troops in America?  Did the Crown intend to impose its will on its American colonists?

In September 1768, two regiments of British infantry were ordered to Boston to support collection of the Townshend Duties.  The “Boston Massacre” (1770) cemented American hostility to regular troops.  The “Boston Tea Party” (1773) demonstrated the uses of violence.   Then came Concord and Lexington (1775).  Then came the Revolutionary War.  In the minds of many Americans, the ultimate defense against tyranny lay in the ability to shoot back.

“Bump Stocks.”

The purchase of fully automatic weapons has been tightly restricted in the U.S. since the 1930s. Outlaws great and small used fully automatic weapons (machine guns and sub-machine guns) against rivals and against the police.[1]  The 1934 National Firearms Act narrowly restricted ownership of fully automatic weapons; a 1986 amendment prohibited most transfers or possession of automatic weapons, except those that had been manufactured and registered with the government in the past.[2]  It would appear that most privately-owned fully automatic weapons are in the possession of licensed gun-ranges.  You can go to a range, pay a daunting fee, and fire a fully automatic weapon at a paper target.  That’s enough for most gun-owners

Still, a small number of gun-owners yearned for the experience of firing a weapon on full-auto at a lower cost.  Then, some physically-disabled shooters wanted an adaptive technology that would allow them to enjoy one of their favorite pre-disability sports.  Admittedly, this is kind of a niche market.[3]  Numerous attempts to design retrofits for semi-automatic weapons failed.  Then, in 2008 or 2009, someone invented “bump stocks.”  The particular technology doesn’t seem to me to matter.  The effect does matter.  “Bump stocks” allowed shooters to “simulate” full automatic fire.[4]

In 2010, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (commonly ATF) considered whether they violated federal law by creating a new form of fully automatic weapons.  ATF concluded that they did not violate federal legal restrictions on automatic weapons.  They did not alter the internal firing mechanism.  They just exploited it to achieve the same effect as a full-auto weapon.  So, “bump stocks” were good to go.  This was two years before the Sandy Hook Elementary School shootings.  In the wake of the Sandy Hook shootings, President Obama said he would “use whatever power this office holds” to prevent a new version of the massacre.  Alas, when he issued 23 Executive Orders in January 2013 to enhance gun-control, these did not include ordering ATF to revisit its approval of “bump stocks.”

Still, “bump stock”-modified weapons have problems.  First, they are Hell on accuracy.  Still if a sniper has 22,000 people penned inside a concert venue, s/he doesn’t need to be very accurate.  Anything within range can become a target.  Second, firing weapons designed to fire as semi-automatic on “simulated” full-auto generates more heat than the weapons are designed to handle.  They tend to jam.  So Stephen Paddock attached “bump stocks” to 12 of the rifles he brought to his room in the Mandalay Bay.[5]  It seems likely that he walked back and forth between the two windows he had broken whenever a weapon jammed, picking another off the bed on the way.

The obvious solution here is to revisit the 2010 ATF decision and declare “bump stocks” illegal.  That won’t do the casualties in Las Vegas any good, but it might help forestall mass shootings in the future.  Still, “mass shootings” as conventionally defined and long-guns (rifles and shotguns) account for a small share of the murders and suicides that still give America a high homicide rate.  Certainly, action on this front is needed.  It should not distract people from the much larger problem of hand-gun killings.  However, it will do just that.  For now.

[1] See: https://www.youtube.com/watch?v=BJ-gYx7hXZg and https://www.youtube.com/watch?v=84Lo0iNy4bg

[2] Kind of like “legacy” admissions to Ivy League universities.  I don’t mean to suggest that they have equally harmful effects on American society.

[3] One Georgia gun-dealer judged that he had sold a couple in a couple of years.

[4] See: https://www.youtube.com/watch?v=U7DTjSla-O8

[5] At maybe $200 each, that cost his about $2,400.

What if Hillary Clinton had won?

One can’t help but wonder what would be different if Hillary Clinton had won the Electoral College vote as well as the popular vote.  Some things are clear, others are hazy–to me anyway.

First, the Republicans would still hold the House and the Senate.  Nothing that President Clinton proposed would pass through Congress and nothing that the Republicans passed through Congress would be signed into law.  Thus, for at least two more years, we would be living with a continuation of the final six years of the Obama administration.  That is, President Clinton II would govern by executive orders and rule-changes by federal agencies.  These would be contested in the courts.

Second, the Republican Senate might well refuse to hold hearings on any Clinton nominee for the Supreme Court.  Thus, probably we would be living with a 4-4 deadlock on the Court.  The decisions of lower courts would be affirmed.  That would shift the judicial struggles to the nomination of judges to lower courts.

Third, both Bernie Sanders and Hillary Clinton had repudiated the Asia Pacific trade deal before the election.  It would be just as dead under a Clinton administration as it is under a Trump administration.

Fourth, James Comey would have been dismissed as Director of the Federal Bureau of Investigation.  Congress would then have held hearings on this matter, including on whether this amounted to obstruction of justice.  (See: Benghazi hearings if you don’t think that this last contention is true.)

Fifth, there would be an investigation of Russian meddling in the 2016 election.  This investigation would reveal—at the least—that the Russkies had hacked Democratic computers and the passed the fruits of this robbery to Wikileaks.  Moreover, the Russians would be revealed to have done a bunch of other things that may have monkeyed with the passions of voters.

Six, the Clinton campaign would have transitioned to government offices.  The results for American government would resemble those of the Clinton campaign itself.  According a New York Times review of the first account of the Clinton campaign organization, “It’s the story of a wildly dysfunctional and ‘spirit-crushing’ campaign that embraced a flawed strategy (based on flawed data) that failed, repeatedly, to correct course…In fact, the portrait of the Clinton campaign that emerges from these pages is that of a Titanic-like disaster: an epic fail made up of a series of perverse and often avoidable missteps by an out-of-touch candidate and her strife-ridden staff.”  These people would then have set out to manage the White House.  Then, what about Bill and Chelsea, and the Clinton Foundation, and Huma Abedin?

Seventh, Roy Moore would not have had the chance to defeat Luther Strange for a Senate seat from Alabama because Jeff Sessions would still be a sitting senator.

Eighth, the Clinton administration would be dealing with a series of long-developing, but now pullulating international crises: Iran’s nuclear weapons combined with its support for the Assad regime in Syria; North Korea’s nuclear threat; Russia’s intervention in a series of conflicts. European elections; and the Rohingya refugees.  So, a lot of ugly issues.

Ninth, the “exchanges” created by the Affordable Care Act (“ObamaCare”) were collapsing before the election.  Young people have declined to pay for their elders.  President Clinton would have had to seek a solution in league with a Republican Congress.  Under these circumstances, what would be the middle ground?

Memoirs of the Addams Administration 32.

Americans are deeply divided on the subject of abortion.  A clear majority (57 percent) support a right to abortion in all or almost all circumstances.  A large minority (40 percent) oppose a right to abortion in all or almost all cases.[1]  Among women, 38 percent believe that abortion should be illegal in all or most cases, while 59 percent believe that it should be legal in all or most cases.  That’s a gap of 21 percent.  Among men, 55 percent think that it should be legal in all or most cases, while 42 percent think that it should be illegal in all or most situations.  That’s a gap of 13 percent.  On the other hand, 38 percent of women oppose abortion in all or most situations, while 42 percent of men oppose abortion.  Some 59 percent of women support a right to abortion, while 55 percent of men support a right to abortion.  So, pro-choice women are right to view men as the weaker vessel on this issue.

White Protestant evangelical Christians make up the most convinced group of abortion opponents.  Almost two-thirds (63 percent) of this group opposes abortion under all or almost all circumstances, while one-third favors a right to abortion in all or most circumstances.[2]  Then 76 percent of evangelicals are white, with another 11 percent being Hispanics.  Evangelicals are not rich: 86 percent have a family income under $100,000 a year and 57  percent have a family income under $57,000 a year.  They are less educated: 43 percent have a high school education or less; 35 percent have some college, but not a degree.  They are older, with about three-quarters born before 1985, with the biggest single group (35 percent) being Boomers.   The vast majority of them (79 percent) say that religion is very important in their lives.  However, evangelicals are evenly divided over the basis for judging right and wrong: 50 percent believe that there are clear standards and 48 percent believe that it depends on the situation.

In terms of political parties, 56 percent of evangelicals are Republican or lean in that direction, but 24 percent of them are Democrats on lean that way, and 16 percent identify as independents.[3]  Here’s the kicker: 55 percent of Evangelical Protestants are women, while 45 percent are men.[4]

However, possibly significant differences exist within both camps.  One quarter of Americans (25 percent) believe that abortion should be legal in all cases, while one-sixth (16 percent believe that it should be illegal in all cases.  OK, that settles that.  However, that leaves 32 percent who believe that abortion should be legal in most (but not all) cases and 24 percent who believe that it should be illegal in most (but not all) cases.

So, where is the middle ground?  Probably restricting abortion to the 20 week mark would be broadly acceptable.  If a woman is pregnant, but can’t decide, so be it.

Who will seize that middle ground?  Well, there are a big chunk of opponents of un-restricted abortion who are Democrats or potential Democratic voters.[5]  Is it worth a majority?

What’s wrong with a compromise?  First, it’s a rejection of a long-standing principle.  Second, it’s a rejection of a long-standing reality.  The War on Abortion will not work any better than/differently from the War on Drugs.  Or alcohol.  Or guns.  We already tried.

[1] http://www.pewforum.org/fact-sheet/public-opinion-on-abortion/

[2] In comparison, 53 percent of Catholics say it should be legal in all or most situations, and 44 percent say it should be illegal; while among black Protestants, 55 percent say that it should be legal and 41 percent say it should be illegal.

[3] The non-Republican evangelicals split 13 percent “liberal” and 24 percent “moderate.”

[4] http://www.pewforum.org/religious-landscape-study/religious-tradition/evangelical-protestant/  So this is not only a war by men on women.

[5] Natalie Andrews, “Abortion Splits Democrats,” WSJ, 14 August 2017.

Memoirs of the Addams Administration 31.

After the latest (but perhaps not last) attempt to “repeal and replace” the Affordable Care Act (ACA), some Republicans have fallen back.  Lamar Alexander suggested that a bipartisan effort to “stabilize and strengthen” the ACA.[1]  Will President Trump accommodate himself to this inconvenient truth?  The president could scuttle the ACA’s healthcare market places by refusing to authorize the payment of the subsidies that enable “Cost Sharing Reductions” in premiums.  Under the Obama administration a federal judge held that payment of the subsidies without a Congressional appropriation is illegal.  The case awaits final resolution in the Supreme Court, but the Trump administration has continued to make the payments in the meantime.  Halting the payments would lead to an estimated 19 percent jump in premiums nation-wide.  Does Donald Trump want to shove millions of Americans off medical insurance?

Six months into his administration, President Trump has begun to encounter resistance from fellow Republicans.[2]  They are eager to embrace a strong line against Russia, they can’t do anything to bring a resolution to the “collusion” story, and they’re angry about his verbal assault on Attorney General Jeff Sessions (so recently one of their own).  If Republicans break from the president, he will have little choice but to abandon a legislative agenda in far of issuing a blizzard of executive orders and vetoing Republican legislation out of spite.  Those will be contested in the courts.  On the other hand, if Republicans break from the president, they will have little chance of advancing their own legislative agenda unless they can unite with Democrats to over-ride a presidential veto.  Of course, cooler heads may prevail.

Playing to his base, the president announced that transgender troops would be barred from further service in the military, and the Justice Department launched an investigation of affirmative action admissions policies by universities.[3]  There may be legitimate reasons for limiting transgender troops in the military.  It isn’t clear that the president knows any of them.  Rather, he seems to have been over-responding to pressure from Christian conservative Republicans.  In any event, the Pentagon said that a tweet is not the same thing as a formal order, that there is a formal review of transgender service people under way; and that all troops will continue to be treated with respect.  In terms of affirmative action, there is a sense in some quarters that it has been turned into a system of “set asides” for African-Americans and, to some extent, for Hispanic-Americans.  Given the over-supply of colleges, it doesn’t have much effect.

Under these adverse conditions, a steadier hand in the White House became vital.  President Trump’s churning of his White House staff reached a new stage.[4]   Chief of Staff Reince Priebus and Press Secretary Sean Spicer left, while Anthony Scaramucci became director of communications.  Then Secretary of Homeland Security John Kelly took over as chief of staff.  Next thing you know, Scaramucci got booted out of the White House.  Kelly, a retired Marine Corps general often portrayed in the media as a Drill Instructor screaming orders up the noses of staffers, tried to impose some order.  (No such option appears available to the Congressional Republicans.)  One key task for Kelly will be dealing with leaks from the sieve-like White House.  It will fall to the Justice Department to stanch the leaks from the Trump Resistance within the federal bureaucracy.  Editorials and columnists generally agreed that a far more challenging task lay in the need to wrangle an undisciplined president.

[1] “Health care: What happens now?” The Week, 11 August 2017, p. 6.

[2] “The GOP: Rebelling against Trump,” The Week, 11 August 2017, p. 16.

[3] “Justice Department to target affirmative action,” The Week, 11 August 2017, p. 6.

[4] “Embattled Trump turns to Kelly,” The Week, 11 August 2017, p. 4.

Memoirs of the Addams Administration 30.

“The great thing about hitting yourself in the head with a hammer is that it feels so good when you stop.”  Recently, almost two-thirds (64 percent) of Americans desired the preservation of the Affordable Care Act (ACA) as it currently exists or with reforms of “problem areas.”[1]   Are there “problem areas”?  Yes.  Here are a couple of examples.  First, there are many people who are caught in a tight spot by earning too much to qualify for subsidies, but too little to be able to afford health insurance.  Second, only a few insurance companies had any experience at providing/pricing health insurance to poor people.  The Obama administration lured many other health insurers into participating in the healthcare market places by promising that all sorts of healthy rubes would pay premiums without needing much care.  Then, the Obama administration failed to enforce the “mandate.”  Many people did not even bother to get health insurance.[2]  The lack of young, healthy fools ready to be gouged for the benefit of older, wealthier people lies at the root of the instability in healthcare market places.  Third, the survival of the system depends upon continuing subsidies from appropriations passed by Congress.  The Republicans have declined to pass such appropriations and a federal court has held that spending without an appropriation is unconstitutional.  This case has not yet been heard by the Supreme Court.  When the Court does hear the case, it seems likely to support the initial decision.

Then, there are all the bad-press issues.  President Barack Obama said that “If you like your insurance, you can keep it” (or words to that effect).  Then the government cancelled a lot of insurance policies as “garbage policies” when the policy-holders really liked those policies.  The “roll-out” of the healthcare.gov web-site was a humiliating mess.  The Supreme Court held that the extension of Medicaid could not be forced on states that didn’t wish to participate by the threat to withhold other Medicaid funding.[3]  Naturally, these colossal screw-ups colored the perception of the ACA for a time.  Now, however, with the ACA an established—if imperfect—reality,[4] Republicans might do well to concentrate on remediation.

Such remediation might consist of getting rid of the ACA mandate on what must be covered; getting rid of the “mandate” that everyone must be covered; allowing/encouraging a few experienced companies to provide insurance for previously uninsured Americans[5]; expanding the range of those people eligible for subsidies; appropriating the moneys needed to make the system work; and not trying to coerce states that don’t want to expand Medicaid.

This will not be easy for Republican law-makers to do.  It abandons ideas of personal responsibility, to which many Republican voters are committed.  It expands spending, when we are already neck-deep in red-ink.  On the other hand, it will not be easy for Democrat law-makers to do.  It abandons the idea of “equal access” to health care and it abandons another federal suppression of state autonomy.

Then we can argue about how to close the budget deficit.  Anthoer difficult task.

[1] “Poll Watch,” The Week, 11 August 2017, p. 17.

[2] About 15 million people did get health insurance solely out of fear of the Internal Revenue Service (IRS).  These 15 million resent having to buy something they don’t need and constitute the core of those people who would “lose” this insurance under various Republican plans.

[3] This class-based program of medical insurance covers many Trump voters as well as the voters whom the Trump voters despise for other reasons.

[4] Like Social Security, Medicare, and the Espionage Act of 1918.

[5] Yes, I understand that this will create a two-tier medical care system.  “What are you, fresh offa da boat?  Expect that the streets are paved with gold?  ‘Merica is hard place to live.  Still, is better than the Old Country. “  NB: Imagined monologue, not a quote from the text.