The Case For Packing the Court

Mad Dog is not a scholar of the Supreme Court, nor is he a historian of 18th century America, but he does live in the state that gave us Noah Webster, and he is a citizen, so he feels qualified to comment.

When the founding fathers were dreaming up this thing called a Republic, based on the idea of democracy, there was, no doubt, a great deal of worry the whole thing was folly and would not work. While there was an intellectual, economic elite who wore silk stockings,ruled over plantations and quietly fathered mixed race children, who could be trusted to govern, there must have been plenty of illiterate rabble who populated the streets of Boston, New York, Philadelphia, and Baltimore, whose very presence worried the landed, moneyed gentlemen.  So the founding fathers hedged their bets: They set up an electoral college to stand between the will of the hoi polloi and the Presidency; they set up a Senate, elected not directly by the people,  but by their representatives; and they set up a Supreme Court, who would serve as long as they exhibited "good conduct," which is widely taken to mean, for life.

These Supreme Court justices did not originally have as much power as they do now--the idea of a court over ruling the laws of the Congress evolved, but it was all very comforting to think there would be a check on the passions of the mob, some cool headed, rational men who would say, "NO, this is something you cannot vote on."

And there is at least one occasion when the court actually led the nation to a better place: Brown vs The Board of Education, where the court said "separate but equal schools" are inherently unequal. The court saw the truth on the ground and called a spade a spade. These segregated schools are the foundation for a segregated society, and all that had to end.

But, except for that, the Court has, over history, at least the history which is big enough and important enough that even an unschooled, unsophisticated citizen like Mad Dog can know about it, over history, the Court has actually played a damaging role in our nation's history.

The first and most notorious case, of course, was Dred Scott, where the Court said Dred Scott, a slave, had no standing before the Court because he was not a man, a human being, but property who or which belonged to another man. You cannot vote on that, the Court said. So be it.

Then, when the nation teetered on the brink of financial ruin and economic collapse, the Court said "No" to the New Deal. Franklin Roosevelt threatened to "pack" the court with justices who could see the danger, but he was rebuffed--he could not find enough support in the legislature. His threats did seem to chasten the court, which became a little less obstructive.

Now, in the space of 5 years, the Court has handed down Citizens United, and District of Columbia vs Heller, Florence vs Board of Freeholders, not to mention Bong Hits for Jesus, in which it has ruled:  1. Corporations, or rather their CEO's and board of directors are entitled to spend all the money they wish to buy elections 2. The 2nd amendment guarantees the right to own any firearm to any individual, whether or not he is a member of a well regulated militia 3. Any citizen may be strip searched by his government whenever he or she is arrested, before any charges are brought or a judge has been informed 4. Freedom of speech may be abridged in the case of students who are within sight of a school principal, whether or not the student is in schoo,l and whether or not the student is speaking out against an act which has been imposed upon the student as a political expression of the principal.

In each of these cases, the harm done the nation has been either profound or only narrowly averted by the vigorous exertions of its citizens.

Reading the Constitution, Mad Dog is stunned by how little is said about the nature and composition of the Court.  No specific number of justices has ever been mentioned and, in fact, the number has varied through our history. The nine justices we have had since the early 20th century is simply tradition, not Constitutional law.

It would not require an amendment to the Constitution for the Congress to pass a law which would allow the President to appoint a new justice for each 4 year term of his Presidency. (Or, if you really wanted to be radical, he could appoint one a year for each year of his Presidency.)  But in any case, as has been suggested by others, this would mean the court would not be locked in until justices like Scalia, Alito, Roberts and Thomas die. 

Some have proposed only the most recently appointed nine justices could vote on cases.

The argument against this is it would make the Supreme Court "political." But one can hardly argue the Court is not political now. When you can predict with near perfect accuracy how four of the justices will vote on any case, given only a paragraph's description of the case, in any case with any significant social/political impact, then you have an extremely political body.

And it is a perversion of politics and democracy to have in place the legacy of vile reactionary thought,  from discredited Presidents,  whom the country has disavowed by voting,  and who continue to poison the wellsprings of democracy with residual lifelong appointments. It is as if the fields have been sown with salt, so they may never yield life sustaining crops again.

The argument has been advanced that we would be opening ourselves to a payback, when, as we always see, the cycle returns to a more conservative President who would appoint conservative justices,  and then we would never have a Brown vs. Board of Education. But this court, like many before it, will be conservative through many Presidential cycles and with the current lifetime death grip it has, the country will be unable to move forward. This is not stability; this is stagnation verging on ossification.

Yes, the court would cycle from liberal to conservative as Presidents come and go, but it would at least cycle.

And, we would, most importantly, be admitting the obvious fact that the Supreme Court is, like the other two branches, political.  And all political bodies are expected to be responsive to the world around them, and to be aware of the needs and competing demands of the people. We have only to look at the smug countenance of Antonin Scalia, to see the outcome of our current system: Here is a man who knows nobody can wrest his power from him. He can continue to sit back and watch as the people elect a new President, as the voters elect new representatives, and whatever the President and the Congress may say or do, it is only Mr. Scalia's opinion which matters in the end. He is the umpire and despite all the replays and all the evidence he has got it wrong, it is still in power. What he rules is final.

We have more than one broken branch. We have two broken branches. It is time to set the fracture in the one branch which most people can see needs fixing.

Facing 2013: Hope and Cringe

One of the few nice things about getting older is you see things come round again, and this time you know what they are.

So when I was thirteen, and Mr. James McFall, who taught "Star Science"--which was a special science course for "star students" at my junior high school--when he expressed horror at the idea that a black boy might dance with a white girl at one of our school dances--even if there was no touching involved, I thought him peculiar, but I had no category in which to place him. 
Why is he so upset about that? 
And when Mr. McFall shook his head and laughed in dismay at the bonehead bureaucrats up there in Rockville: The people who chose names for high schools decided to name the new high school in Bethesda, Walt Whitman, I just blinked at him, uncomprehending. 
"You know," he confided, looking around to be sure our conversation would not be overheard. "You know what he was, don't you?"  
"A poet?" I said.
"A queer," he said. "Queer as a three dollar bill."
"Oh," I said, uncomprehending.  I did not see Mr. McFall's point. 
Whitman was not a poet I liked very much. I would have preferred Emily Dickinson. But I couldn't see being queer had much to do with anything.

Now, we have people who say we should respond to the killings of six year olds at Newtown by arming teachers.  And, as Gail Collins has noted, what next? We just had a shooting at a church--should we arm the ministers next?  And how about when the shopping mall massacre occurs--arm shoppers? 

Has an armed citizen ever shot a shooter who has planned in advance, who takes everyone by surprise, is clad in armor and loaded for the kill? 

But that doesn't stop the head of the NRA from laying out a plan which has never worked in the past.

And we hear, every day, from Jim Demint or some other demented Tea Party Congressman or Senator that all we need to do to right our financial ship and sail right is to "cut spending."   What exactly does that mean?  Just scrap Medicare? Forget Social Security?  

These are the hollow me. Seen them before, still seeing them.  That's their story and they are sticking to it.

Lucky for U.S., they are not the only Americans.

 Among the 300 million of us, there are Gail Collins, Charles M. Blow, Barack Obama, Maud, Jon Stewart, Stephen Colbert, Paul Krugman, Barney Frank, Hendrick Hertzberg, The New York Times (most of the time), the New Yorker (almost always), Jill Lepore, Elizabeth Warren, the voters of Hampton, Rye and Portsmouth,  New Hampshire,  who gave Mr. Obama majorities in their towns.

So Merry Christmas, and bless us, the above named, but not the others.

Tea Party Rules

Scrolling through Wikipedia's list of Tea Party Republicans in Congress, Mad Dog was surprised to see names from 37 states--it's not just Arizona, Texas, Oklahoma and South Carolina--there are names from Michigan, Maryland and lots of blue states. New Hampshire has a Congressman named Bass who is a Tea Party man, and a senator, Kelly Ayotte.   From the little pustules of Connecticut, West Virginia, California, Tea Party Republicans have been sent to Congress.

Clearly, these are representatives of  some of the  people who believe any taxation is an anathema, which is to say, any government is an anathema.  Of course, many of these same people are ardent warriors and they love defense spending. If conversations with local New Hampshire tea party enthusiasts are any indication, many of them live on Social Security, Medicare and military pensions, with Veterans Administration health care, and they see no contradiction in their loathing of all things government and their own feeding at government teats. 

And there are, apparently, enough of them in the current Congress to block any action on a budget compromise--so they can get what they want: No government. Tea Party loyalists can paralyze the government as they please. They have been elected and they can do what they please.

Here is the speech I'd like to see Mr. Obama give:

Last November, over half of the nation voted for me and my promise to move this country forward with vigorous government, with taxes on the wealthiest Americans, and with appropriate cuts in government spending. But pockets of the country sent representatives to government as part of a newly radicalized Republican Party. That new incarnation of the party of Lincoln would hardly be recognizable to Lincoln today.
It is a party which is dedicated to the proposition that no government is better than even moderate government. It is a party which believes taxing even the richest 1% of Americans is government tyranny and unacceptable.  They have enough numbers in the House of Representatives to paralyze the government and they are doing just that. There is really nothing my administration or my government can do without a willing partner on the other side. That is the nature of the checks and balances written into the Constitution. The underlying assumption of the Constitution is that the people's representatives will provide a government which does more good than harm. They Republican Party is currently dedicated to doing the opposite.  It is dedicated to the destruction of the government and of all the things it does to provide health care, security and economic stability for the people.
So, I will take a vacation, enforced upon me by the intransigence of the Republican Party. When I return, I will  keep the executive branch functioning. When, and if ,the legislative branch can come to its senses, the members of Congress know where I live. I'm right down Pennsylvania Avenue, ready to work, whenever they are.  God help the United States of America.

Guns and The Constitution: An Honest Solution

Okay, here is a modest proposal to end the debate about the 2nd amendment and to allow for different laws for gun control and gun liberty throughout this vast nation:

1. Let us recognize the 2nd amendment of the United States Constitution does not give the right to the nation's people to own hand guns, hunting rifles or any sort of arm except for members of each state national guard (militia) and these people may possess and use military weapons in and from their own homes. (More on this later.)

2. Given this absence of a universal, national right to keep and fire weapons, the states are free to pass whatever laws they may desire. Texas can require elementary school principals to keep and bear arms to protect their students. South Carolina may permit legislators to pack heat in the state house and Arizona may arm private citizens who are members of vigilante posses run by Sheriff Arpaio.  But New York might ban all weapons within a fifty mile radius of the Empire State Building and Maryland might outlaw guns in Baltimore,  while permitting them in Frederick and Chincoteague;  and Washington, DC might ban guns altogether.

This would be the honest approach to the problem, so there's not a snowball's chance it will ever see the light of day. 

It would require the justices of the Supreme Court to actually read the 2nd amendment, which would be something akin to the second coming of the savior--much hoped for, not expected in our lifetime.

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be abridged."

Which, put into 21st century English is: 1. We are going to explain here, as we do nowhere else in the Constitution, the reason we are granting this special right having to do with weapons.  2. The reason we are allowing certain people to keep arms is because they are part of a well regulated militia--not just any Syrian hothead group, mind you, but a militia regulated by, who else?, the government, the only thing which can regulate anything.  3. And this militia is necessary to preserve the state, the free state. 4. So, of course, we are talking about military weapons only here, for this one purpose.

Given that plain English, you got the right for some people to keep AR-15's in their homes, so they can grab these and run down to the town square and fire at the Redcoats or the Commies or whoever else is threatening the free state.

But you beer swilling, inbred killers, who want your hunting rifles to hunt, or your hand guns to shoot anyone who crosses your threshold without your expressed permission, (and maybe even if they have your permission, you might plug them,) well those hunting guns, those hand guns, those target practice guns, none of those is guaranteed you by the national Constitution, so go besiege your state legislatures and get those politicians to vote you your rights--they will only apply as long as you remain in your own snakepit of a state.

There now, isn't that better? We are now: 1. Honest about the Constitution 2. We can allow local cities and states do what they want to do. 

And we can choose where we want to go, knowing the local laws and customs.

 Is there any doubt what sort of laws Texas and Arizona will pass?  And they are welcomed to those guns down there. 

And the rest of us will have fair warning, if we want to plan our conventions or trade shows or vacations in those exotic,  God fearing,  gun toting places.

Grover Norquist: The Chauncey Gardiner of Our Time

President "Bobby": Mr. Gardner, do you agree with Ben, or do you think that we can stimulate growth through temporary incentives?
[Long pause]
Chance the Gardener: As long as the roots are not severed, all is well. And all will be well in the garden.
President "Bobby": In the garden.
Chance the Gardener: Yes. In the garden, growth has it seasons. First comes spring and summer, but then we have fall and winter. And then we get spring and summer again.
President "Bobby": Spring and summer.
Chance the Gardener: Yes.
President "Bobby": Then fall and winter.
Chance the Gardener: Yes.
Benjamin Rand: I think what our insightful young friend is saying is that we welcome the inevitable seasons of nature, but we're upset by the seasons of our economy.
Chance the Gardener: Yes! There will be growth in the spring!
Benjamin Rand: Hmm!
Chance the Gardener: Hmm!
President "Bobby": Hm. Well, Mr. Gardner, I must admit that is one of the most refreshing and optimistic statements I've heard in a very, very long time.
[Benjamin Rand applauds]
President "Bobby": I admire your good, solid sense. That's precisely what we lack on Capitol Hill.

--"Being There"  (The Movie)

Listening to the pundits on TV this morning, I was struck by a memory of a women I interviewed years ago. She had been a highly visible ambassador and a cabinet secretary and she was a constant presence on talk shows. It became clear to me, after a few minutes, she was deep into Alzheimer's. She was careful to keep all her answers in generalities, and could not answer questions which required any detail, like, "What did you have for breakfast this morning."  You'd get, "Oh, the offerings of the kitchen are altogether pleasant."

Two weeks later I saw her interviewed on a Sunday morning talk show, and she answered in the same lovely, general phrases, and nobody seemed to suspect she had no clue where she was or who was in the studio with her.

And now, I see pundits, Congressmen and Senators interviewed who say we have to cut "entitlements" by cutting expenditures on Medicare and when asked how to do this we hear vague generalities about, "improving competition,"  and "streamlining" and gaining "efficiencies" and eliminating "fraud and abuse," and I know I am looking at people who do not have a clue. They are, like Grover Norquist, great on images and phrases. They want to drown government and its inefficiencies in a bathtub, but they have no clue what that actually would mean.

These are the empty men and women, with brains of mush, who appear on our TV screens and get paid big bucks for looking and sounding presentable. We make them into what we need and we follow them over the brink.

Where Is Mr. Obama's Thaddeus Stevens?

As Mr. Obama dickers with Mr. Boehner, he may well imagine himself in the position Abraham Lincoln found himself, trying to horse trade and wheel and deal to get the 13th Amendment passed into law,  but, of course, nothing Mr. Obama is looking at approaches the historic importance of the 13th amendment.  They are just talking about money, and who should pay what, not about the idea of whether or not our nation believes one man can regard another as property, not a human being, whether or not our government can regard human beings as property.

So the stakes are not as high in Mr. Obama's current dealings with Mr. Boehner.

But that should mean, Mr. Obama cannot be forgiven for giving up important principles, sacrificing less important principles for an over riding principle when the only principles here are: Can we get the Republicans to disavow their pledge to Mr. Grover Norquist and actually agree to govern?

Giving in on lowering the threshold to $250,000 for the 39.5% tax rate is caving in. Giving on on cost of living raises on Social Security is caving.
Who is playing the Thaddeus Stevens role of sitting in the kitchen with the President, looking across the table and saying, "We need a real leader. Someone who will lead. That means saying, 'No,' when you have to"--who is saying this to Mr. Obama?

Now, if you can just get Mr. Obama on the phone, Mad Dog will be happy to say it.
Maud, might say it. She's a fan of Thaddeus Stevens.
Will Joe Biden say it? Will Harry Reid? (And could you hear him if he did?) Will Tom Harkin? Will Nancy Pelosi?  Is there a Democrat, male or female on Capitol Hill or in the White House with any balls?

Second Amendment Protects Only Assault Rifles

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
--Second Amendment, United States Constitution

With Antonin Scalia and his fellow "strict constructionist" justices, the Constitution has been elevated to the status of a holy book, and all the answers are found in the writings of antiquity. So it is strange that, looking at the actual sacred text, there is little ambiguity: The only weapons our 18th century founders guaranteed to the people are military weapons, i.e., weapons needed by militiamen.

It is really remarkable how much meaning is packed into a single sentence. The purpose of guaranteeing the right of American people to keep and bear arms is clearly stated: To provide security for the state, for a free state. Not to provide security for the individual. The individual is nowhere mentioned. The right is extended to a group, "the people." And not just any people, but the people who are members of a militia, and not just any old militia, but a "well regulated militia." So the powdered whig founders precluded guns for Syrian wild type militias. You had to be a militia which is out there to protect the state, the free state. 

Do you really need 3 years of law school to read this sentence and interpret its meaning?  Do you need a black robe or a spot on the supreme court to understand this sentence? 

Once you read the various Supreme Court opinions which get you from this sentence to the idea that what this sentence means is every single individual in this nation is entitled to buy, stockpile and carry ("bear") attack rifles, grenade launchers and Sig Sauers, you have got to understand how determined the Scalia gang has been to arrive at a place which was never even dreamed in the minds of the authors of the holy scripture Justice Scalia claims as his sacred text.

So, it is clear  the concealed handgun is not protected, because you cannot use a Sig Sauer to defend a state--for that you need a rifle, or an AR-15. Cannot imagine a company of militia charging across a field firing Glock 9's at the Redcoats or the Hessians.

The AR-15 can be fitted with a grenade launcher easily, and would be a very effective part of a militia's mission.

This morning, on The Squawk Box, a Congresswoman from Connecticut debated a conservative commentator. The conservative commentator noted that with the last assault rifle ban, which lasted 10 years, the Department of Justice studied the "effectiveness" of the ban in reducing deaths  by assault rifles and found no efficacy. The law had no buy back provision--simply outlawed new sales. He suggested the solution is to allow psychologists to report potential crazy mass murderers to the police. The Congresswoman said the solution to the problem was to ban assault weapons without abridging second amendment rights, and also to place a trained expert psychologist in every school to identify potential mass murderers. 

The psychologists have been all over the idea that more money ought to be sent the way of psychologists:  Pay for a psychologist in every school  in the country.

Politicians are falling all over themselves, looking for experts who have answers, or at least places to spend money with great alacrity so they can hold up something, anything, to the TV cameras to show  how "proactive"  they can be. They are proposing spending more money to prevent the next mass murder event. Plans for this money vary.

Mad Dog is still out here listening to his neighbors, some of whom are gun enthusiasts. The gun enthusiasts say things like,  "You'll have to pry my dead cold fingers off my gun,"  and they like shooting things, making big bangs, feeling big, and their guns are a big part of their self esteem. They also like playing video shoot 'em up games and posing for photographs with their guns.

Mad Dog says:  1. The Constitution is a "living document," which means we can decide the 2nd amendment means whatever we want it to mean in the 21st century--which is exactly what the four thugs in black robes on  our Supreme Court have done.  2. We can ban all weapons, if we want to.  3. We can hire psychologists and make them report whatever they learn about potential mass murderers to the police, to the school board, to the media, to whomever we want,  if we want to. 

Mad Dog is not sure if any of this will help, but at least it may make us all a little less pickled in horse manure.