The Supreme Court is full of shit, the sequel: eminent domain

I stand amazed at the apparent idiocy of the Supreme Court justices (Stevens, Souder, Ginsberg, Breyer, and Kennedy -- egads, can it be that I agreed with Scalia, and Thomas?) who ruled in favor of public seizure of private land for private development. Remember, if the Constitution don't say it, gov't can't do it. I even forgot about Article IV, Section 2, Clause 1: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." -- so if the Constitution don't say it, the states can't do it either.

So with that in mind, this is what the Constitution says about private property seizures: "nor shall private property be taken for public use, without just compensation." (Amendment 5). Note what it doesn't mention is seizure for private use. And make no mistake: the final product of this seizure is private use. Public use is use beneficial on an equal basis to all members of the the public (although I recognize that employees of a public-use facility get salaries, they also work for those salaries, so don't give me the "not everybody can get a job" crap). A hotel is private use; an apartment complex is private use; a department store is private use: each of these is owned by one or a group of private citizens who receive profit from payments for use of the property, while the rest of the public must be satisfied with whatever services that may or may not be benefit from increased funding from the marginal increase in the tax base.

I dispute also Stevens' assertion that economic development is a fundamental function of government. There is a difference between paving a road and putting up streetlights, and even granting tax breaks, and kicking someone off his property and giving that property to someone who makes more money. That's what this is, after all.

And (dare I say it?) bravo to Thomas for his separate dissent. I have to admit that I'm more outraged by this case than by the eviction of poor folk from their condemned apartments in the name of urban development, and it is constructive that Thomas disputes Stevens approval and emulation of urban development in D.C. or Utah's pro-mining, anti-settler laws of 1906. To grant any benefit to private individuals for land seizures is wrong, and we have to watch even who is granted the contract to construct public-use facilities on seized as well as unseized lands.

This, James Dobson and your ilk, Tom Delay and your ilk, is judicial activism: granting rights to governments that they do not and indeed should not have. A grudging hail to Scalia and Thomas. And impeachment for Stevens, Souder, Ginsberg, Breyer, and Kennedy -- as long as we maintain a 60-vote cloture rule.

Got a problem? Blame secular humanism!

With the whole European Constitution thing going on, there has been the occasional irksome discussion about the role of religion in Europe -- irksome not because such discussion shouldn't occur, but because of the assumptions that seem to be taken without question by most of the commentators. The most loathsome is one a lot of you have probably heard, and it goes something like this: "the excesses of secular philosophy led to the most destructive ideologies of all time: fascism and communism" -- as if to vindicate religion. And, like almost everything I find loathsome, this assumption is wrong on so many levels.

First of all, fascism was not secular. Fascism comes from fascis, the name of one of the symbols of the Roman Empire, the bundle of wheat, which Mussolini adopted as part of his attempt to portray himself as Caesar over a new Roman Empire. On the one hand it is simply a symbol of that empire, but remember also why it was a symbol: the wheat is bound together, identical in form and length. Try to bend on blade, and it breaks; try to bend the bundle, and it doesn't budge. If the bundle were formed of different kinds of grain, of different densities and lengths, it would be possible to weaken the whole structure by breaking the different ones. Thus, the fascis is a symbol of strength through unity and conformity -- and, by extension, the destruction of that within the bundle that does not conform. Logically, with unity and conformity, there is no need for debate, so a single ruler can know what is best for all -- and the fools among us will assume that he will do what is best for all. Finally, part of the conformity of Italian fascism was Catholicism: what's an Italian if he's not Catholic?

Nazism also was not secular: among the banners on display in marches and rallies were those that read "Gott mit uns!", which is German for "God with us" (not unlike isra-el, "God among us" -- neat, huh? Germany and Israel are also the only two countries I know of with the "right of return"), and Mein Kampf is full of references to God's will for justification of racial assertions, just as the doctrines of neo-Nazi and Aryan groups today. Aryan superiority is rooted in God's blessings, and Jewish acursedness is rooted in their rejection of God.

And communism, if lacking a deity, was still a religion. It had an unquestionable dogma: dialectic materialism; unimpeachable prophets: Marx, Lenin, Stalin; it had an inevitable, if distant, heaven: the utopia of the worker's paradise, wherein men would be freed of possession or greed, of exploitation or brutality. And the real kicker is, of course, that which is central to religion: it could not be questioned.

Secondly, there is no question that the most destructive ideology in history is Christianity: it undergirded the draconian force of Constantine's reign, the brutality of the conquests of the Americas and African and Asian colonies, the expulsion of the Jews from every Western European country and persecution and pogroms elsewhere in Europe, the peasants' wars, the Thirty-Years War, the Inquisition, the Salem witch trials, and, well, Nazism, neo-Nazism, and White Supremacy. That Christianity has also influenced individuals to do good forces us to examine what it is that makes an ideology destructive.

And guess what: humanism ain't it. Science ain't it. Fascism and communism both turned science on its head by starting with unquestionable assertions and building arguments for them while killing anyone who argued against them. Such absolutism is what makes a movement destructive. Humanism is not inherently absolutist, and science is decidedly not. Religion, however, is by definition absolutist. Scientists abandon science when they stop using reason, when they stop testing and analyzing their assumptions. The religious achieve "enlightenment" when they do the same thing.

So maybe it's the recognition of the destructive role of suppression of reason, of unquestionable dogma, that has led Europeans to omit mention of Christianity from their Constitution, just as our founders omitted mention of God in both the Articles of Confederation and the Constitution. It may be, although I doubt it, reason and analysis that have led Europeans to stop going to church. At any rate, observers who say such secularism is dangerous, that regimes set loose of the moorings of religion are prone to brutality and destruction are just so, well, full of shit.

Rebublicans are full of shit, part 1b: the "Constitutional option" and up-or-down votes

Ah, the Republican doublespeak. I should note, in the interest of balance, that Democratic doublespeak is every bit as loathsome; it just so happens, though, that the Democrats aren't in power. An "up-or-down vote", Mr. Delay? Do you view the American public as stupid enough not to see that, in a 59-41 Senate, that means de facto approval? The fact that many Americans may be is beside the point. Would you be so quick, Mr. Delay, to call for an up-or-down vote were the ratio of Republicans to Democrats reversed? Therein lies the first level of disingenuity. As for the "constitutional option," well, that's just a load of shit.

Throughout our Constitution, and our system itself, is a recurrent theme: a minority, or even an individual, can thwart the majority's attempt to use government power. For example, 51 Senators trump 435 Representatives; 1 President trumps 535 Legislators; 5 Justices trump 536 Legislators and Executives -- and with the 14th Amendment, those 5 justices trump the combined force of every state, county, municipal, and federal government agent, short of two-thirds of federal legislators and three-quarters of the fifty state governments. Of course, impeachment is the tool of the majority, but again, that's a tool for withholding government power from individuals it is not within the power of the Legislature to replace. One state trumps 49 others (currently; I wonder when or if we'll ever get another state. . . ), because no state can be deprived of sovereignty. Similarly, in law, 1 juror can prevent a guilty verdict, and 1 judge can overturn a guilty verdict.

So why the filibuster? Unlimited debate is the province of the Senate, whose members have the longest elected terms in the federal government. The minimum age for Senators is 30, that of Represantatives only 25. It is here that reason is supposed to win out over passion, over the mob's limitless lust for power. The Senate's composition already argues for the preservation of rights of smaller states, each of which has the same number of Senators as the largest state. And let's be clear: the threshold for cloture is 60 votes, so anyone who claims that a "small minority" of Senators is gumming up the works is, well, full of shit.

Anyway, reducing the threshold to 50 votes doesn't sound like the kind of option attributable to the Constitution I've read.

Delay and his minions, in their slavish devotion to Bush, are already perverting the intent of the Constitution by attempting to make the legislative branch a tool of the executive. They are further showing an unforgivable foolishness that is most anti-American: the notion that powers granted to the government are used only for the purposes intended, and are never abused. Or perhaps they just think that the Republicans shall always be in the majority, which is just silly. Supreme Court Justices die and retire unpredictably, so who knows what party (even the Libertarians, dare I hope?) shall be in majority in the Senate when the next round of judicial retirements come around? If the Republicans are in the minority, will they speak approvingly of the 51-vote cloture rule?

This is so incomprehensible to me. Demography changes, after all, and giving government authority to push your agenda virtually guarantees that at some future date, government will push an agenda that is not yours, or even counter to yours, using the authority you gave it. If government can say "In God We Trust," it can say "Allahu akbar!"; if we establish English as the official language of the country, later demographies can replace it with Spanish; if we allow government to forbid homosexual marriage, how about interracial marriage, or even (gasp) heterosexual marriage? All it takes is a shift in demography, and a minority that has had to put up with one expression of the authority to speak on religion, language, or interpersonal relationship will, upon becoming a majority, make the government do something else. The way to protect your language, religion, or culture is not to enshrine it in an amendable constitution, but to keep all of it out of government.

And the way to ensure that you won't be railroaded when you are a 49% minority, don't use your slim majority now to whittle away at minority checks on power.

My prediction on Iraq

I thought I'd throw this in, because Frontline had . . . um, some guy from the NY Times, the Baghdad bureau chief, in fact, talking about how things are over there.

Shortly after we invaded Iraq, lo, these many moons ago, I turned to my wife and said that within three years of that invasion, Iraq would be either in civil war or under a tyrant (as the outcome of a civil war). At the time, my reasons for so predicting were as follows:

1) The Kurds have no vested interest in a unified Iraq: they governed themselves in the northern region more or less okay. Not entirely, though, as it was on their watch that Ansar al-Islam set up shop in their territory. Yes, it was only in that region that Saddam could not control that Islamic terrorists could operate. Fuck you, Georgie-Porgie!

2) The Shiites, being mostly rural and not well-educated (a la Iran -- anybody remember Khomeini?), have no real notion of the real basis of enlightened democracy, that is, the inviolability of individual sovereignty. As a result, their majority would result in at the very least an attempt to screw the Sunnis. At worst, it would be "Shi'a, shi'a uber alles, uber alles im Iraq!"

3) The Sunnis, as a group the most urbanized and educated, are in the minority. Those prone to violence will foment it, in an effort to provoke a response that'll unify the Sunni Syrians et al. against the Shi'ites. Those not so inclined shall still be screwed by the Shiite majority, of which some members inevitably will react.

And let's not forget Iran.

So the countdown is on. I'll get back to y'all in March 2006 on this.

Republicans are full of shit, part 1a: strict contructionism

This should be in a larger piece about judicial nominees (part 1b), but I had to get this out because I saw some idiot on Jim Lehrer today talking about strict construction of the Constitution as the basis for Bush's selection of judges. What a load of crap. Bush and his crowd don't want judges who interpret the Constitution strictly. Rather, they seem to want judges who will promulgate this horseshit (and by that, I mean an assertion unsupported by historical evidence) about our polity having been founded on the Bible and the Ten Commandments. In case you had any doubt, I reject that interpretation of the evidence because, well, the evidence indicates that the Constitution, and before that the Articles of Confederation, were based on the writings of John Locke, the interpretations thereof and of history in general by Thomas Jefferson and James Madison, and a profound distrust of individuals with power. The Republicans seem to think that power is great, as long as one of their guys has it, but it's horrible if one of them (so far, the Democrats) has it. I think that a pretty good criterion for identifying a fascist is whether his support of an action by a president depends on the party to which that president belongs.

I should point out something obvious, before I forget. There are two ways in which a constitution might be written: as a list of all the authorities of government, from which an omission constitutes a lack of authority; or as a list of restrictions on the authorities of government, from which an omission constitutes authority. More simply: 1) "if it doesn't say it, you can't do it" or 2) "if it doesn't say you can't, you can do it". There is only one logical way in which to read the U.S. Constition, and that is as an explicit enumeration of the only authorities granted to government, outside of which government does not have authority. Remember that the Constitution was written without the Bill of Rights, which are amendments to the Constitution. Aside from several clauses that explicitly qualify legislative authority (Art. I, Sect. 9), the Constitution itself forbids the federal government from doing a few things:

-- depriving a state of sovereignty (Art. V)
-- using a religious test in granting offices or trusts "under the United States" (Art. VI)

The executive and judicial branches are not forbidden from doing anything -- so that means the President can do anything, and the courts can "legislate from the bench" -- but it is not logical, based on the writings of Madison and Hamilton, the Constitutional debates, and the language elsewhere in the Constitution, to assume such unlimited authority for the President and the Supreme Court. They are implicitly forbidden from setting policy by a positive statement ascribing legislative authority to Congress -- is it necessary, then, to explicit prohibit the President from passing laws? Obviously, no.

As to the clauses in Article I, Section 9 . . . you know what, I guess one might read these and say that Congress could pass any law not prohibited by this section. After all, the principal argument against the Constitution was that it did not have a Bill of Rights to prohibit the government from doing certain things. But remember Hamilton's argument against the Bill of Rights: he notes that the Constitution does not, for example, authorize the government to limit the press, so the First Amendment is not necessary. It might reasonably noted further that enumeration of restrictions of government might lead someone (like, say, Supreme Court Justice Antonin Scalia) to later disparage a restriction not there listed. Which is why we have the ninth amendment. So, fuck off, Scalia.

Bearing all this in mind, a strict constructionist on the bench might make the following rulings:
-- tossing out all narcotics laws, because there's no authority to prohibit production, use, or sale of any item. If there's any doubt, see the 18th amendment, without which alcohol could not have been criminalized;
-- tossing out the 1956 law establishing "In God We Trust" as our national motto, as it is as clear a violation of the First Amendment in its assertion not only that God exists but that Americans (must) believe in God (which is an implicit violation of Article VI);
-- tossing out the 1864 law allowing the currency to bear "In God We Trust", as above;
-- tossing out the 1942 law establishing the Pledge of Allegiance, as the Constitution does not authorize Congress to create a citizen's oath;
-- tossing out any law requiring an agent of government from leading recitation of the pledge: see above, plus the 14th Amendment, and the general understanding of the impressionability of children (we don't let'em vote, sign contracts, or have sex, so why do we think that they could make a reasoned decision about whether or not to follow along with adults we tell them to respect and listen to?);
-- overturning the conviction of any soldier who refused to deploy on orders of the President in the absence of a declaration of war by Congress, because the President is commander-in-chief only when the military is "called into the actual service of the United States" -- and the only entity capable of doing that is Congress. Soldiers who therefore refuse deploy in the absence of a Congressional declaration of war are not traitors, but patriots. I'll avoid following this line to its logical conclusion, because, well, it's too easy to find out where I live;
-- at the very least voicing opposition to the Congress' payment of about half a million dollars to two men whose only function is to pray (the Congressional chaplains -- although military chaplains can be considered an employee benefit to troops deployed far from their churches, I'm pretty sure there are houses of worship for each denomination in Washington, D.C.)

A strict constructionist would make rulings that would piss off the Democrats, too, but they're not the ones claiming to want a strict constructionist. As such, it is quite evident that on this issue, as on many others, the Republicans are full of shit.

Medical marijuana: why the Supreme Court is full of shit

As I write this, I'm listening to two morons debating today's Supreme Court ruling on medical marijuana. On the one hand, the supporter of that ruling argues that marijuana is not medicine, so should not be legalized; on the other hand, the opponent argues that marijuana is. Who gives a shit?

The U.S. Constitution does not authorize the federal government to ban use of a drug, and doesn't even authorize the government to ban import or interstate commerce of the product: only to assess tariffs or "regulate" commerce. The only logical way to read the Constitution is as an explicit list of that which the government can do, rather than as a listing of what government cannot do -- that is, if it doesn't say the government can do something, the government cannot do it. I'll argue that point at some other time, but the clearest precedent is Prohibition: the federal government could not ban the production and sale of liquor (discriminating, of course, against non-Christians by allowing Christians to preserve eucharistic wine) without a constitutional amendment. I have seen no such amendment authorizing the government to ban the production and sale of marijuana, or, for the matter of that, of cocaine, LSD, methamphetamine, or anything else. Growing and smoking marijuana within a state does not fall under interstate commerce, and it is not "necessary" for the "general welfare" to forbid all individuals from smoking marijuana. The FDA doesn't really have a solid Constitutional basis, but in any case the authority to regulate is the authority only to make regular -- in measurement of weight, description of contents, etc. -- not to prohibit.

So the Supreme Court's only business regarding medical marijuana is to strike down federal narcotics laws themselves. Their action today is incomprehensible.