Saturday, February 5, 2011

The Problem of Treaties

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Article VI, § 2 of the United States Constitution

Treaties present a bit of a problem for advocates of enumerated and divided powers among federal and state governments, because they afford Congress and the President the means to carve out new areas of supreme law without piquing the awareness of the electorate. Treaties have been used to provide the federal government with a means of arrogating power unto itself which it clearly lacked under the existing supreme law of the Constitution. Government, limited as it is by the enumerated and divided powers of the Constitution, seeks at all turns to make inroads into forbidden areas of authority.

This is a natural consequence of government, as any student of history is well-aware. You may limit government powers, and divide them among various branches and tiers, but the government will strain against whatever bindings you place upon it in order to gain what it lacks: broader or even unlimited power. Treaties are a means by which previously off-limits areas suddenly become permitted, as a practical matter. This is not to say that this is the way things ought to be; it is merely to establish that this is the way things are.

The historical example of a treaty giving rise to powers previously denied to Congress under the Constitution and case law precedent would be that of the Migratory Bird Act of 1913. The courts held that under the Constitution, the federal government could claim no power over wildlife within a state's boundaries. As far back as 1877, in McCready v. Virginia, the Supreme Court had denied a federal power to regulate fisheries, declaring the following: "States own the tidewaters themselves and the fish in them, so far as they are capable of ownership while running...The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States. There has been, however, no such grant of power over the fisheries. These remain under the exclusive control of the state....."

It would be no different with the Migratory Bird Act of 1913, as United States v. Shauver would hold: "“All the courts are authorized to do when the constitutionality of a legislative act is questioned is to determine whether Congress, under the Constitution as it is, possesses the power to enact the legislation in controversy; their power does not extend to the matter of expediency. If Congress has not the power, the duty of the court is to declare the act void. The court is unable to find any provision in the Constitution authorizing Congress, either expressly or by necessary implication, to protect or regulate the shooting of migratory wild game in a state, and is therefore forced to the conclusion that the act is unconstitutional.”

The holding would be consistent with that of another, later district level case, United States v. McCullagh, which held the following: “[T]he exclusive title and power to control the taking and ultimate disposition of the wild game in this country resides in the states, to be parted with and exercised by the state for the common good of all the people of the state, as in its wisdom may seem best.”

Congress did not accept the limitation upon its power presented by the enumerated powers of the Constitution and the interpretations of that Constitution consistent with its enumerated powers. Instead, Congress sought to negotiate a treaty with Canada via Britain which would allow Congress to assert dominion over migratory fowl. The Migratory Bird Treaty completely obviated any limitation on Congress's power to regulate wild fowl in states, and as a result, the Migratory Bird Act of 1918 led to federal power over wild birds within states. It was a blatant end run around the constitutional limitations on federal power, which was supposed to be confined to those areas expressly enumerated by the Constitution as federal concerns.

Since a treaty was the supreme law of the land, every judge in every state was bound to enforce the treaties and the laws arising out of those treaties. In United States v. Thompson, a man from the same state as Shauver, Arkansas, found himself prosecuted for shooting migratory birds protected under the treaty and the 1918 Migratory Bird Act. Thompson utilized Shauver's actions to no avail: “To subject the treaty power to all the limitations of Congress in enacting the laws for the regulations of internal affairs, would in effect, prevent the exercise of many of the most important governmental functions of this nation, in its intercourse and relations with foreign nations, and for the protection of our citizens in foreign countries. The States of the Union may enact all laws necessary for their local affairs, not prohibited by the national or their own Constitution; but they are expressly prohibited from entering into treaties, alliances, or federations with other nations. If, therefore, the national government is also prohibited from exercising the treaty power, affecting matters which for internal purposes belong exclusively to the states, how can a citizen be protected in matters of that nature, when they arise in foreign countries? Even in matters of a purely local nature, Congress, if the Constitution grants plenary powers over the subject, may exercise what is akin to the police power, a power ordinarily reserved to the states.”

This opinion was written by the same judge who presided over United States v. Shauver, Judge Trieber, and the rationale underlying his holding would be affirmed by the Supreme Court in Missouri v. Holland: “No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power.” In essence, the constitutional proscription against federal power being used in areas inconsistent with the express powers reserved to the federal government under the Constitution was completely gutted. In the event that federal overreach was struck down in the courts as inappropriate due to the lack of any express or enumerated power under the Constitution, Congress could simply use a treaty to accrue the power it sought but lacked owing to constitutional limitations on its powers.

Limited federal government and limited federal power were finished. What has followed has been an orgy of treaties which expanded the power and authority of the federal government to regulate everything from drugs to food to prostitution. Entire government bureaucracies arose from treaties rather than any enumerated federal power under the Constitution, with little input from or involvement by the electorate. It is extraordinarily difficult to retroactively undo such expansions of federal power, which is why it is of the utmost importance to defeat any such attempt before it takes hold.

The problem with this is that the electorate is disengaged by its very nature from the intricacies of the political process. We delegate such matters to elected officials and the appointed bureaucrats they oversee, and they aren't keen to report the specific implications of their actions to us because they are acutely aware of the dim view the American people take of expanding federal power. What we are told, if we are told anything at all, consists of broad generalities and platitudes which relate to the well-intentioned ends rather than the specific means necessary to arrive at those ends. It is extremely doubtful that the people of the various states at the time of the Migratory Bird Act of 1918 would have approved of that Act via a direct vote if they had been made aware of the fact that shooting bird within their states could be classified as a federal crime. People tend to favor local power because it is more immediate and responsive to their input, whereas federal power is removed and nowhere near as responsive to local input given the fact that federal officials will be out of state and therefore insulated from the wrath of their local constituents by distance for much of the year.

Moreover, the American people are largely unaware of the full implications of any application of the treaty power and what it can mean for their lives. Many Americans assume that federal overreach is just that: impermissible overreach borne of a flagrant disregard for the Constitution on the part of elected officials. In point of fact, the overreach is not borne out of a disregard for the Constitution, but rather an awareness of the intricacies and nuances of various parts of the Constitution which can be perverted into loopholes that effectively obviate any limit on federal power.

James Madison recognized the inherent problems of having a treaty power which could be obviated by state laws and constitutions in Federalist No. 44, as he made note of the fact that such a power would render a treaty with a foreign government the law in states where constitutions did not conflict, and of no effect in states where the law did conflict. The answer might easily be resolved by saying that in areas of trade and commerce, or in any area consistent with the enumerated powers of the federal government expressly denied to the states, the federal government should be able to enter into a treaty with regards to those enumerated powers. Unfortunately, the Constitution does not read in this manner. There are two forms of supreme law, the Constitution and treaties, and there is no differentiation as to the supremacy of the former over the latter.

Because of this, Congress has been able to usurp vast amounts of unenumerated power unto itself and the federal government by engaging in treaties to avoid limitations on its power in areas where it coveted increased authority and power. It's why we have a DEA, an FDA, a Fish and Wildlife Management, and various other agencies. None of those agencies have a shred of basis in any of the enumerated powers of the federal government; they arise solely out of treaties made by the federal government with an eye towards the circumvention of the limits placed upon its power by the enumerated powers reserved to the federal government and its branches under the Constitution. This is the problem of treaties, and any reform movement which seeks to seriously address federal circumvention of constitutional limits will have to address this problem head on whenever such an opportunity arises.

Still to come: The Executive and Treaty Power

Understanding the Commerce Clause

Many of us have a theory of the law which we attain through the reading of various ideologically minded attorneys and judges, and we assign to that reading a certain level of credibility based on whether or not it conforms to our view of reality. This is true of everyone, regardless of their background and standing in life. Louis Althusser put it best: “Ideology is a ‘Representation’ of the Imaginary Relationship of Individuals to their Real Conditions of Existence.”

Nowhere is this more true than in the average person's view of the law. There's the view of the law as it ought to be, and then there's the law as it is, practically speaking. In order to effectuate a change in the law, you have to understand how the law works, how it is, as opposed to focusing solely on how it ought to be. Ideology is dangerous precisely because it places the emphasis on an imaginary worldview that prevents one from attaining the real condition of one's existence in a manner that would enable one to master those conditions and effect change.

With that said, the following is my attempt to communicate to you what is, as opposed to what ought to be. There are certain caveats I must offer up before we proceed:

1. Case law is the law from a practical, real world standpoint. Like it or not, the law is what judges say it is regardless of how we feel about it. It may anger you, it may infuriate you, and you can deny it with every fiber of your being, but it is the reality of our existence as individuals bound under the law.
2. The fact that you don't agree with something does not make it any less of a reality. This has been a personally difficult epiphany that I've had throughout my life, and it's especially relevant to the way I've viewed the law. The law is not what I say it is, nor is it was I think it ought to be: from a practical standpoint, we live under judge-made law and judge-defined law here in the United States. The law is what a judge says it is as a matter of practical reality.

The Commerce Clause is one of the most utilized sections of the Constitution where an expansive reading of federal power is concerned. It is one of the means by which Congress has slowly and incrementally expanded its power inwards to regulate the lives of individuals within the United States, even though such regulation was historically the role of the states. As a practical matter, we can trace historical regulation of matters like marriage and abortion to the states and not the federal government. This has changed drastically over the past 100 years, because Congress has used the Commerce Clause as a justification for radically redefining its power to encompass internal matters on a scale that has no parallel in the early history of our Republic.

There are three broad categories of activity Congress may regulate under the Commerce Clause:

1. Channels of interstate commerce, i.e. highways, roads, and bridges, etceteras.
2. Instrumentalities of interstate commerce, i.e. persons or things in interstate commerce such as a gun, a truck, so on and so forth.
3. Activities having a substantial effect on interstate commerce, even though such activities are arguably non-economic.

For the purposes of today's note, we're going to focus on numbers two and three. Understand that a gun transported between states either as part of its manufacture or its use by a lawful or unlawful possessor may be regulated by Congress under the Commerce Clause according to existing case law. In United States v. Lopez, the Supreme Court overturned a law which enabled Congress to criminalize firearm possession within 1,000 feet of a school, an area defined by Congress as a "school zone." This sounds good, but it actually isn't, because the reasoning underlying the Court's decision was as follows: the statute in question had "no express jurisdictional element which might limit its reach to a discrete set of firearms possessions that additionally have an explicit connection with or effect on interstate commerce."

The Court told Congress what was wrong with its statute, and essentially gave them a standard by which they could remedy the issue. Congress could regulate gun possession within 1,000 feet of a school by criminalizing even legal gun ownership, so long as Congress explicitly restricted the regulation to those firearms which have either "an explicit connection with or effect on interstate commerce." A firearm which has crossed state lines has an explicit connection to interstate commerce, and this means that virtually every firearm in the country would be subject to such Congressional regulation, because every firearm tends to cross state lines when shipped from the manufacturer or the distributor to the end retailer. Additionally, even if the firearm is intrastate in its manufacture and shipping, it has a substantial effect on interstate commerce because you have purchased that intrastate firearm rather than an interstate firearm. By making such a choice, you have affected interstate commerce.

Do you see how this standard enables Congress to regulate nearly everything, even though United States v. Lopez is generally taken as a court mandated narrowing of federal oversight under the Commerce Clause? Let's extrapolate the reasoning further: let's say that Congress argues that the component parts of the firearm are part of interstate commerce because they are made by parts manufacturers in different states and assembled into a final product like a pistol in one state. Even though the end product is an intrastate firearm, the fact that its individual parts are part of the stream of interstate commerce could conceivably give Congress another opening to regulate firearms in the manner described above. This argument relating a stream of interstate commerce to increased federal power to regulate intrastate commerce was rejected in A.L.A. Schechter Poultry Corp. v. United States, but the underlying issue would likely be brought up again if Congress found its attempts to regulate firearms denied because the firearm in question was intrastate and also held to be a firearm with no discernible effect on interstate commerce as an intrastate firearm.

The Commerce Clause and the case law arising out of it go further to regulate purely non-economic activity, and this area in particular enables federal power to be expanded exponentially in a manner that erodes both individual self-determination and state sovereignty over internal affairs. In United States v. Morrison, Congress asserted power to regulate gender-motivated violence because of the substantial effect of such violence on interstate commerce. Violence motivated by gender was non-economic activity in and of itself, but it had an effect on interstate commerce by increasing medical costs, diminishing national productivity, and deterring potential victims from interstate travel. As such, Congress asserted that under the Commerce Clause, it was fully permitted to regulate such non-economic violent behavior because of the substantial effect such behavior had on interstate commerce in the aggregate.

The majority in Morrison rejected this line of reasoning, noting that it would constitute a clear inroads by Congress to regulate virtually every form of crime on the same grounds of an aggregate economic effect on interstate commerce. Justice Souther's dissent rejected any such distinction, and said that unless Congress's assessment was completely irrational, it should be sustained as a jurisdictional basis. This rational basis for Congress's regulation under the Commerce Clause would become significant in a later case, Gonzales v. Raich.

In Gonzales v. Raich, the Court held that "Congress had a rational basis for concluding that leaving home-consumed marijuana outside of federal control would similarly [as in Wickard v. Filburn with wheat] affect price and market conditions." Therefore, Congress could regulate medicinal marijuana, even though the market affected was an illegal interstate market. Moreover, the Court went much further: "We need not determine whether respondent's activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding." In essence, the finding of Congress may be factually inaccurate, but so long as its conclusions are based in rationality, then the regulation of any matter with an aggregate or substantial effect on interstate commerce will stand.

The minority in Morrison was now the majority in Gonzales v. Raich, and its reasoning in the dissent of Morrison was now controlling legal authority in Raich. Justice O'Connor's dissent noted as much: "Until today, such arguments have been made only in dissent." There was no need for a factual foundation to underlie rational basis, one could look at data and draw whatever conclusion one pleased; and so long as that conclusion did not deny the data outright in an obviously absurd manner, a rational basis could be had that would pass constitutional muster.

Justice O'Connor further noted that the net effect of such logic in a majority opinion is the invitation of "increased federal regulation of local activity" through the attachment of intrastate activity to some concept of national activity. So long as there is a rational basis, the majority would defer to Congress, and as O'Connor notes: "If the Court defers to Congress as it does today, little may be left to the notion of enumerated powers." To O'Connor, "something more than mere assertion is required when Congress purports to have power over local activity whose connection to an intrastate market is not self-evident." There is no doubt that the illicit marijuana market in California has a substantial effect on the national illicit market for marijuana, but O'Connor did not believe the Government made its case that the medicinal marijuana market had a substantial effect on the national illicit marijuana market. To O'Connor, rational bases in application were little more than mere assertions attached to data to demonstrate a tenuous justification and theory of federal power under the Commerce Clause.

There was no evidence in Raich presented by the government to demonstrate that the respondents, two California women who had been prescribed marijuana for their various ailments, were engaged in distributing marijuana interstate or even intrastate. They were authorized to grow their own marijuana and to use it consistent with California's Compassionate Use Act of 1996. However, the federal government argued that their possession and use of some six marijuana plants rendered an effect on the illicit marijuana market which justified federal regulation and intervention. There was no hearing in the case of Diane Monson, one of the respondents. Federal agents raided her house and destroyed her six marijuana plants without any court hearing, trial, or semblance of due process whatsoever. Those plants were her property and were entirely legal under California law, and imagine the implications of such activity for other classes of federal crime.

When government agents storm your house and confiscate your guns because they suspect that those guns are illegal under federal law, they can immediately destroy them before a court adjudicates the matter. There is no trial, there is no hearing, there are no charges...your property is gone and destroyed forever, even though those agents are constitutionally barred by the 14th Amendment from depriving you of your life, liberty, or property without due process of law. The Court did not even speak to this issue in the case. It didn't merit any consideration whatsoever.

We now move on to the Commerce Clause as it relates to the Tenth Amendment in New York v. United States. Congress had enacted the Low Level Radioactive Waste Policy Amendments Act of 1985, and one of the three provisions challenged required states to take title or ownership of privately generated radioactive waste within their borders if the states did not provide for the disposal within the state or within a region designated to handle such waste by January 1, 1996.

The Court held that while Congress could encourage states towards a particular policy end, Congress was not empowered by the Constitution to compel states towards that policy end. The question then became one of semantics: what is the difference, if any, between encouragement and coercion? The answer is found in the finding of the court that a choice between accepting ownership of waste or regulating according to the instruction of Congress isn't really a choice at all. It coerces states into either carrying out the disposal of waste according to federal guidelines by taking ownership of the waste, or it commandeers states into legislating along the same lines as Congress. Congress can neither order a state to take possession of private waste, nor can Congress command a state to enact mirror legislation to that of federal law. Therefore, Congress cannot offer a choice between the two and remain with the boundaries of enumerated or limited constitutional power. Either outcome results in a state being forced to do what Congress requires.

The fact that some state officials consent to the arrangement does not legitimize it, because departure from the constitutional division of powers "cannot be ratified by the 'consent' of state officials.

This line of reasoning extends over to Printz v. United States, which held that commanding state and local law enforcement officers to perform background checks on gun purchasers was unconstitutional because it enabled the federal government to "compel the states to enact or administer a federal regulatory program." A state's individual officers may not be compelled or conscripted into service in order to implement a federal regulatory program.

However, the federal government can prohibit states from engaging in activity based on the activity's relationship to interstate commerce, as in Reno v. Condon, where the Driver's Privacy Protection Act of 1994 restricted "the States' ability to disclose a driver's personal information without the driver's consent." The Court referred to South Carolina v. Baker, which held that state activities could be regulated, but the manner in which states regulate private parties could not be intruded on by Congress. The DPPA did not require states to regulate their own citizens, and therefore was held to be constitutional and consistent with New York and Printz.

One wonders who to reconcile this reasoning with that of Raich, where a state's attempt to regulate medicinal marijuana use by private parties was obviated by federal law under the Commerce Clause. These are the inconsistencies that arise under the law, especially when Congress and the Supreme Court are trying to cobble together justifications for expansions of power. The task is, as Justice O'Connor puts it in her Raich dissent, "to identify a mode of analysis that allows Congress to regulate more than nothing (by declining to reduce each case to its litigants) and less than everything (by declining to let Congress set the terms of its analysis."

The Commerce Clause as it is currently interpreted and applied is a law unto itself whereby Congress may arrogate unto itself vast amounts of power previously seen as the exclusive province of states. Therein lies the issue with the Commerce Clause and the concept of enumerated or limited federal powers: if you read those powers in such a way as to obviate the limitations, you enable Congress to regulate every area of an individual's life and deny individuals within the states the power to democratically select those laws which reflect their own set of values, such as medicinal marijuana and concealed carry within a school zone. Understanding the Commerce Clause entails understanding it as it is, not as we want it to be, because understanding it as it is is the first step to formulating action to bring about what we as a people want.

What if Congress used the Commerce Clause to enact a tax on bullets which resulted in the above scenario?

Thursday, February 3, 2011

Magical Thinking and the Left

Recently, I was queried on my incessant bashing of George W. Bush by an individual who wondered why I didn’t hit the Left harder, or at all. It struck me that I had always looked upon the matter of criticizing George W. Bush as a matter of bashing the Left, since I consider George W. Bush to be an exemplar of Leftist thinking and action. I resent Bush all the more precisely because he claims the mantle of conservatism as a sort of cover for his agenda, which is undeniably of the Left.

The Left, as I have understood it in the course of my examinations, is obsessed with pragmatism as a rationalization for nearly any sort of behavior. The common good, the greater good, and the few for the many...these are all the sorts of phrases that precede any leftist discussion of agendas and initiatives. We must, on occasion, sacrifice the individual on a pyre in order to preserve the group. Whether or not his sacrifice is volitional or coerced by statute or state force is of no concern; sometimes martyrdom must be compelled at the individual level in order to allay a holocaust for the entire group.

The Left is amorphous, but the common thread with leftist thinking, or as I refer to it, magical thinking, is an obsession with hypotheticals used to avoid addressing the manifest absurdities of leftist action in current reality. What if is used to avoid ever having to deal with what is.

As an example, I’ll recount to you a recent case I read in my Constitutional Law class and discussed with my professor afterwards. The case is City of Boerne v. Flores, a case in which the city in question had declared an entire district of its territory to be historical in nature. The problem arose when a Catholic parish within the historical district wanted to build an addition to accommodate its growing congregation. The city denied the building permit, and the parish sued under a federal law, the Religious Freedom Restoration Act of 1993.

The RFRA prohibited government from burdening a person’s exercise of religion unless the government could demonstrate that the burden in question was in furtherance of a compelling government interest and constituted the least restrictive means of furthering that interest. Under § 5 of the Fourteenth Amendment, Congress has the power “to enforce” by “appropriate legislation” the guarantees of § 1 of the Fourteenth Amendment where life, liberty, property, and equality before the law are concerned. The question in the case was whether or not Congress’s actions in enacting the RFRA were an appropriate exercise under § 5.

The Supreme Court found that Congress’s actions were not an appropriate action under the Fourteenth Amendment, and in doing so held that a municipal government’s interest in protecting the historic value of a building trumped the rights of the owners of that building to worship in it according to their 1st Amendment right to freedom of religion. The net effect of the ruling was that forty to sixty parishioners who could not fit inside St. Peter Catholic Church were denied the ability to worship where they pleased because the diocese couldn’t build an addition to the church without the permission of the City of Boerne. That permission was denied by the city government on the grounds that St. Peter Catholic Church was a historic building.

It is incomprehensible to view a city’s interest in a church edifice and its value as somehow more compelling than that of the individual worshippers who built and supported the maintenance of the edifice in question, but that is what the study of law prepares one to do: arrive at absurd results in a pseudo-logical fashion. The Court made much hay over the fact that the Fourteenth Amendment was remedial rather than substantive, because in the early debate over the Fourteenth Amendment, it appeared that the author, Representative John Bingham, was allowing Congress to determine which legislation of the States was unjust and therefore unconstitutional. This was an impermissible overreach into judicial powers, according to lawyers and judges.

Yes, and the judiciary never transgresses into the legislative area by effectively ruling that state and congressional statutes are moot, and in doing so it does not enact new law by abolishing the old. Such was the case when the states weren’t moving expeditiously enough to legalize abortion, and so the Court stepped in to abolish the statutes of some forty-eight states prohibiting abortion with Roe v. Wade. In doing so, the Court rendered abortion legal, even to the point of promulgating guidelines down to the trimesters in which abortion would be legal. Somehow, this did not constitute legislating from the bench, although there have been examples of actual legislation by elected officials with far more vague and ambiguous language than that contained within Roe v. Wade.

At least the Congress had the decency to amend the Constitution in order to make inroads against the judiciary, and in doing so they did respect process. In short, the net effect of the Court’s point was this: that where a state has gone awry, Congress may remedy the the issue with appropriate legislation under the Fourteenth Amendment without defining the substance of the state law in question as unconstitutional. And how they would do that is a topic best left to the cloudy magi of the Supreme Court, because how does one propose to remedy a defect under the Fourteenth Amendment without in some way defining the defect as constitutionally impermissible? Hmmm?

My professor and I discussed this after class because I raised the issue that even absent a religious interest, § 1 of the Fourteenth Amendment prohibits states from depriving individuals of their property without due process or from stripping them of equal protection under the law. Property owners outside of the historic district of the City of Boerne could do as they pleased with their property and churches outside of the district could access building permits to expand as they saw fit. Inside the historic district, the City of Boerne could obviate equal protection or standing before the same municipal building code in order to promote its own interest in a particular building, an interest which reduced the owner’s interest in the building to a secondary importance.

My professor asked me if I believed that individuals should be free to do with their property as they saw fit. I said yes. He then proposed a hypothetical: what if he wanted to develop his property into a pig farm? I said he should be able to do so, after hesitating a moment. He asked about the damage to surrounding property, and I told him that under our civil law, he would be liable for any damage his pig farm visited on surrounding properties. The end result was that my professor looked at me incredulously and walked off smiling at my insouciance towards the adjacent properties in his hypothetical.

This is the great success of leftist magical thinking. It’s so pervasive that we don’t even understand what we’re doing; we automatically revert to hypotheticals in our debate over the matter in front of us. We let the what if obviate the what is, and we engage in equivocations that aren’t equivocal at all. A pig farm isn’t a Catholic church, and the City of Boerne has no business drawing a parallel between the two in order to justify its denial of a building permit to St. Peter Catholic Church in order that the church may accommodate its expanding congregation and individuals may freely worship where they choose to worship on the property owned by the diocese and its members without having to stand out in the elements in order to do so.

The law exists to serve individuals, at the individual level, to preserve and protect and even to expand their ability to exercise their rights. It does not exist so that a building may trump the exercise of those rights because the municipal authorities have deemed the historical importance of the building to outweigh the exercise of the free religious expression and assembly of the building’s owners. It is a vicious pragmatism that justifies an exercise of such onerous and capricious state power in order to preserve the historical sanctity of an edifice at the expense of the sanctity of individual and corporate religious expression and assembly. It’s vulgar to compare a pig farm to a church in order to analogize the exercise of state power in such a way as to render state overreach against a church somehow more acceptable to modern mores.

There are some things which simply shouldn’t be regulated by state and federal governments precisely because they are beyond the pale of such authority. The assembly of consenting adults engaged in worship according to their own consciences is one of those things, and anything that denies or impedes them in doing so is an impermissible overreach by a government into areas of religious expression. That includes the denial of building permits for such assemblies when they have outgrown their existing facilities. Moreover, the ability of a property owner to expand his building in one area of town should not be any different than the ability of a property owner in another area of the same town to do the same. Under the Fourteenth Amendment, states cannot deny any individual within their jurisdiction the equal protection of the law.

It is manifestly absurd to insist that Congress cannot make the distinction between equal and unequal, or what constitutes a denial of due process by a state which rises to the level of requiring a § 5 remedy that is both remedial and substantive. In order to arrive at remedy, a substantive reading and understanding are necessary. You have to be able to say that a state’s inroads against due process where life, liberty, or property is concerned is substantively unconstitutional before you can effect a remedy.

In Boerne, the Court held that so long as a government’s intent or object was not the stifling of religious expression, the fact that it end result was the stifling of religious expression was irrelevant. If religious bigotry isn’t the motivation underlying the law which stifles religious expression, then the law can stand even though it obviates an individual or group’s freedom of religious expression, even on their own property or within the building they bought and paid for with the expression intention of holding services. If the means are void of any bigoted intent, then the end result can have the most bigoted and malignant effect on individual religious freedom imaginable, and all the Court can say is “Oopsy! They didn’t mean to!”

The Court is not concerned with this end result, but rather with the end result that negates state power or makes the tyranny of majorities difficult to implement over the rights of minorities:

“Claims that a law substantially burdens someone’s exercise of religion will often be difficult to contest. Requiring a state to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law.”

So what? Where individual rights are concerned, the bar ought to be as high and demanding of states as humanly or legally possible in order to limit their ability to intrude on individual liberty. State power does not exist as a justification for narrowing individual access to liberties like religious expression; instead, state power exists as a means to ensuring the end of individual access to religious expression:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,...”

Governments are instituted among men to secure the rights of those men, not render them of secondary importance to the preservation of a historic building or any bric-a-brac thereof. What if this, what if that...anything to avoid the ugly and obvious implications of what is in front of us. Leftists and other utilitarian thinkers never want to answer for the damage they have already wrought, they merely want to point to the damage that could be wrought in some abstract hypothetical if they are denied the ability to place their power in primacy over the rights of the individuals who inevitably suffer depredation at the hands of governments run amok.

This diseased wit and wisdom permeates every area of contemporary society and intellectual debate, because those who employ it in everyday life can never answer for the past or present results that such reasoning has led to when implemented in policy and legislation. Instead, they posit a fearful possibility, a potential that is far removed from a Catholic church...something like a terrorist boarding an airplane or a pig farm next door, or an elderly individual with few years left to live in competition for medical care with a young girl who has her life in front of her. Implicit in these examples is an assumption that they bear some corollary to everyday life, but the reality of the matter is that the people advancing these hypotheticals seek to define our lives and reality itself on the basis of the most extreme hypotheticals imaginable, hypotheticals which represent the outliers of possibility. Such hypotheticals are nearly impossible to the point of being implausible.

Let us consider the example of the terrorist who has information on a bomb that will detonate within a few minutes. His captors must act, and so they must choose between torturing him by perhaps hooking his genitals up to a car battery and bartering with him the standard way. The absurdity is obvious: the terrorist will tell you anything to avoid being subjected to genital electroshock, and you are likely to be led on a wild chase, the end result of which will be the bomb detonating and killing everyone. There is no guarantee that the terrorist will disclose the information necessary to prevent the detonation because you tortured him.

You will simply go to your Maker guilty of hooking a man’s genitals to a car battery in your final moments on this planet. The more pressing question is this: how and why did your government fail to prevent the attack in the first place? What incompetence on their part allowed a terrorist of limited means, intelligence, and education to evade the scrutiny of a government which can take satellite photographs of license plates from outer space and listen to every phone call and intercept every email?

The Left does not wish you to focus on their competence or the lack thereof, nor do they want you to ever zero in on the fact that the efficacy of government action is often overstated and rarely as a good as advertised. That is why it is so important to deny the Leftist the ability of framing the debate in terms of what if by forcing him to acknowledge and discuss what is. Only then does his magical thinking become apparent for what it is: a pure and utter absurdity whereby the extremes of life and experience are are used to provide the standards for the everyday norms and medians of human existence.

In this way, then, you are constantly taught to accept government power in times of peace as a means of preventing some extreme catastrophe from befalling you and yours, and in the end, the 9/11s and the Pearl Harbors and the Oklahoma City bombings still happen anyway because the government isn’t that damned good at what it does. In the aftermath, the government reframes the debate away from its failings and on to some proposed set of new powers which will supposedly enable it to avoid future lapses, and it does so by framing the debate in terms of what if in order to avoid ever having a reckoning with what is or what was.

That’s the power of magical thinking. It’s intellectual and mental sleight of hand that keeps you from thinking logically in order to prevent you from ever realizing the inherent absurdity of thinking magically.

Tuesday, February 1, 2011

Georgia Republican’s bill would do away with driver’s licenses | Raw Story

Rep. Bobby Franklin...would it were that more legislators had his attitude.

Posted via email from Screed of Momus

Afghan elite 'plundered $900m' from leading bank - BlackListed News

And we're bankrolling the elite of Afghanistan to boot. Joy.

The Law and Absurd Results



The average American assumes that his government exists to secure the rights of man, and he looks upon the various powers ceded to government in the form of authority as a means to that end.  Unfortunately, that isn't the case for any number of reasons, not the least of which is the tendency of judges to ignore historical context in interpreting the law.  Our Declaration of Independence links the establishment of our Republic to various grievances, many of which are routinely upheld in the courts today as a matter of law.  Let us review some of those objections: 

"--He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

--He has kept among us, in times of peace, Standing Armies, without the Consent of our legislatures.

--He has affected to render the Military independent of and superior to the Civil power.

--He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

--For quartering large bodies of armed troops among us:

--For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

--For cutting off our Trade with all parts of the world:

--For imposing Taxes on us without our Consent:

--For depriving us in many cases, of the benefits of Trial by Jury:

--For transporting us beyond Seas to be tried for pretended offences:.."

The federal government has expanded to levels unimaginable over the past seventy years, and its officers do constitute a swarm by any reasonable standard. We have standing armies among us, given the proliferation of military bases, and those standing armies do not exist for any effective means of national defense, as 9/11 more or less established in glaring fashion.  There are any number of acts that have been passed over the past twenty years to render the military independent of and superior to the Civil Power, not the least of which is the Patriot Act in its various incarnations.  Today's federal government consists of agencies not authorized by any explicitly or enumerated power under the United States Constitution, but rather agencies that came into being as a direct result of our entry into various treaties and agreements. The Drug Enforcement Administration is one of the biggest examples of this, as the Supreme Court ruled in United States v. Jim Fuey Moy, 241 U.S. 394 (1916) that Congress could not make possession of drugs illegal within the states.  So where does the power to criminalize possession and establish the DEA come from?  Two treaties, the International Opium Convention and the Multilateral Narcotics Convention, give the federal government an opening to subject U.S. citizens to a jurisdiction foreign to the Constitution, which expressly reserves such internal matters to the states.  A treaty is the supreme law of the land, and so long as Congress can find a foreign partner to enlarge its oversight through a treaty, it can regulate damn near anything.  




Today, the federal government has extended immunity to private paramilitary groups like Blackwater/Xe, and quartered them in crisis areas like New Orleans in the aftermath of Katrina.  They can do whatever they please with minimal liability, up to and including murder, and there is no civil or criminal redress private citizens may seek against such armed troops, and the government has more or less abandoned even the appearance of propriety in such matters, because it no longer conducts even mock trials of such contractors when they rape, kill, and steal either here or abroad.  The use of such forces is one of the chief ways Congress obviates the intent of the Posse Comitatus Act. Moreover, there have always been glaring exceptions to the Posse Comitatus Act, such as the National Guard or the Coast Guard.  The War on Drugs gradually eroded Posse Comitatus further by authorizing the use of military forces in the enforcement of drug laws and in interdiction efforts against smugglers.  We all see what a roaring success the War on Drugs has been for military contractors and suppliers. The rest of us, not so much.  






The federal government not only cuts off trade in a manner destructive to the interests of average Americans along the lines of disastrous tariffs like the Smoot-Hawley Act; it also expands trade with governments who derive their principal advantage through currency devaluation.  China's competitiveness is not due to any productivity or legitimate outperformance of American industry; rather, it's chief advantage lies in a totalitarian government which is willing to employ a scorched earth approach to currency devaluation.  Think of the Chinese as Rome, and the United States as Carthage, and you'll get the point.  Our fields have been plowed under with salt, from a manufacturing standpoint.  

In regards to the Sixteenth Amendment, the states involved in its ratification violated their own laws in the manner in which they ratified it, or they voted on a version of the Amendment that didn't include any reference to income whatsoever.  Of the 48 states, only 20 met their own legal standards in ratifying the amendment.  Yet then Secretary of State Philander Knox certified the ratification of the Sixteenth Amendment just the same, and in doing so foisted upon us the means by which many of us now pay an income tax, even though the number of states ratifying the amendment did not meet the legal two-thirds requirement.  




Where the benefits of a trial by jury are concerned, the federal government now holds American citizens indefinitely without trial and transports them beyond the sea to Guantanamo Bay to be tried for offenses without access to the evidence or witnesses against them in flagrant violation of the Sixth and Eighth Amendments.  Many such individuals are never even formally charged with a crime, which brings up an issue under the Fifth Amendment.  

The abuses of the federal government go even further in their consistency with the litany of objections voiced by colonists in the Declaration of Independence:

--For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

--For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

Today, the federal government has claimed for itself the power to legislate for states through the Commerce Clause, up the point of requiring states to take possession of the pollution of private industry in order to make states responsible for disposing of said pollution. That's a very nice subsidy to private industry, as it renders taxpayers at the state level responsible for paying for said disposal.  In New York v. United States, 505 U.S. 144 (1992), the Supreme Court overturned such efforts as unconstitutional attempts to commandeer state legislatures and state power.  The Court went even further:

"Whatever the outer limts of that sovereignty (that of the state) may be, one thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory program." 

However, in South Dakota v. Dole, 483 U.S. 203 (1987),  the Supreme Court held that Congress's withholding of 5% of South Dakota's federal highway funds in order to compel South Dakota to raise its drinking age to 21 was not a form of compulsion or coercion.  It was constitutionally permissible, because it wasn't a denial of all of South Dakota's highway funds, and South Dakota could opt out of its own volition, the punitive nature of Congress's tie-in of the drinking age notwithstanding.  The federal government took funds from South Dakota taxpayers, and then offered those funds back in full to those same taxpayers, but only if those taxpayers did something the federal government wanted done.  How is that not coercive or compulsory?  Well, you have to be a legal scholar to comprehend such masterful semantics.  You and I are not at the level of Supreme Court justices in our rhetorical gymnastics, so we should all make like Chief Justice Charles Evans Hughes and understand this: "“...we are under a Constitution, but the Constitution is what the judges say it is...”





Such is the way of the law, and judges want us to believe that they don't make it up as they go along, but the reality of the matter is that they do.  The letter of law binds everyone but a judge, because a judge breathes life and parameters into the law beyond the letter or any meaningful, logical context.  To say as the Court does in Wickard v. Filburn, 317 U.S. 111 (1942), that an individual cannot grow his own wheat for personal consumption because doing so would reduce the aggregate demand for wheat in the marketplace where prices are fixed by the federal government is to surrender to incredulity as bedrock truth.  The United States was an agrarian society at the time the Commerce Clause was written; the idea that those men who wrote and ratified the Commerce Clause intended it to be a means to prevent individuals from growing their own food to evade artificially high commodities prices fixed by a federal government is absurd on its face.  Fillard wasn't engaged in commercial activity, because the excess wheat he grew above the permitted allotment he was allowed by the Department of Agriculture was not for sale. But his non-commercial activity enabled him to evade commercial activity in the broader market by exempting him from purchasing wheat from that market for his own use, and the Supreme Court held that he could be forced to buy wheat from a government controlled market and denied the ability to grow his own wheat for personal use under the Commerce Clause.  

There are times when the literal word of the law may give rise to an absurd result if followed, as in Re Sigsworth, where a son murdered his mother and by a literal construing of the law was entitled to inherit her estate.  In such cases, it is perfectly reasonable to dispense with the letter in order to prevent an absurd result whereby murderers are enriched through their crimes, but it is also perfectly reasonable to look at a figurative or subjective construction of the law with the same concern.  The law does not exist to give rise to absurd results, either through denying individuals the ability to evade totalitarian government price-fixing in matters of food, or through denying a state and its citizens the right to set their own drinking age as they see fit without facing punitive sanctions utilizing the tax revenues they paid as citizens!   There are times when such constructions and machinations fly in the face of society's values and goals where the law is concerned, and judges ought to be cognizant of that fact when interpreting the law.  Federal power is the most overused, abused, and overreaching power we have in our society, and the ends to which that power are employed are irrelevant because America was founded on republican ideals which posit limited government with enumerated powers at the federal level.  It is absurd to construe federal power in such a way as to obviate this basic reality, especially when the end result is consistent with the very sorts of abuses that led our forefathers to rebel against the King of England.  





Posted via email from Screed of Momus

Monday, January 31, 2011

The Enemy Is Information



Senator Joseph Lieberman, chairman of the Homeland Security Committee, has seen the future and its enemy: information. He's introduced a bill co-sponsored by Senator Susan Collins to enable the President to shut down the Internet in times of emergency.  Lieberman and Collins both insist that the power will not be abused in the manner in which Egyptian strongman Hosni Mubarak abused it, because...well, because they don't think a United States president would do such a thing.  We live in a time where modern-day legislators are proposing the prosecution of foreign citizens under the Espionage Act, and the President claims for himself the power to order the assassination of U.S. citizens suspected of involvement with terrorist groups.  Mind you, these people haven't been convicted of any crime, and a terrorist group is any group classified as such by the State Department.  There's no real legal boundary that restricts the classification to any objective parameters; classification depends on the arbitrary determination and fiat utterances of the Secretary of State.  



This is the world in which we live, and we are supposed to trust that increased power will not be wielded by our leaders in an abusive or overreaching way.  The problem with that notion is that our standard of abuse and overreach is vastly different than the standard put forth by elected officials and unelected bureaucrats. We tend to take issue with the notion that a President can incarcerate American citizens suspected of wrongdoing indefinitely without trial or hearing.  In point of fact, our President claims the power to kill American citizens based on suspicion alone.  

There's something terribly wrong with this attitude elected officials have towards power; moreover, there's something terribly remiss in the failure of the American people to react towards such asinine claims of power.  State power exists to secure individual liberties, to make regular people safe in their persons and in their property from official abuse.  State power does not exist as an excuse to trample those rights or as a means to aggress against the safety of individual citizens.  State power is held in check by due process, and in civilized, free, and open societies, due process is of paramount importance.  It's how we generally ensure that the right people are punished for wrongdoing, because the alternative is an incarcerated or executed innocent party and a false sense of security instilled in a populace whose members falsely believe that the threat has passed.  

Our government is evil in the biblical sense.  The Hebrew word for evil, ra, essentially denotes taking a particular thing and perverting it against its purpose. Our government is the very embodiment of the concept: established to secure our rights and common liberties, the government has transmogrified into an interest separate from those rights and liberties, even to the point of directly competing with those rights and liberties in order to establish and expand its own prerogatives and powers. 

Nowhere is this more evident than in the notion that our President ought to be given the power to unilaterally shut down the major conduit of information in a time of crisis.  We need not view our government as existing in a complementary relationship with our interests; forty consecutive years of deficit spending, deregulation and fraud, along with vast corruption, have proven that our government's interests are in direct competition with the interests of average Americans. Every dime they spend is mortgaged against your future and that of your children.  Every dime they take is money you don't keep to put towards your family's advancement, or your own future.  Our government is the largest consumer in the economy, and it consumes vast sums of money to finance its debt; money which comes directly out of the market and which could and should be used to invest in private innovation and private sector expansion.  The government tempts us with money it doesn't have, in the form of tax credits and refunds above and beyond what many of us actually pay in income taxes.

And this same government, fiscally reckless and blatant in its corruption, expects us to trust its head with the discretion and the power to unilaterally strip us of access to information via the Internet.  There is something wrong, something downright Un-American about the proposal.  We have a system of checks and balances; and ceding to the President the unilateral authority to deny every American man, woman, and child access to the Internet in a time of emergency represents a direct assault on the concept of divided powers so unique to our country and so critical to the preservation of our liberties.  

Joe Lieberman's era as a Congressman is coming to an end soon, as it should.  Senator Lieberman is an enemy of freedom and an enabler of tyranny, as his advocacy of this bill shows.  His co-sponsors are all friends of the State and enemies of your liberty.  A time of emergency is the time when access to information is the most critical, and Joe Lieberman's actions would enable our government to arbitrarily deny us access to information when we most need said access.  The 'Protecting Cyberspace as a National Asset Act of 2010’ bill is one of the most odious pieces of legislation ever proposed, and it does not even merit a vote.  It ought to be summarily thrown out of committee without a moment's hesitation.  




I am asking each and every one of you reading this to call, email, and personally write your congressman or your congresswoman to tell them in no uncertain terms that this bill simply will not stand.  These are the sorts of items we can't afford to negotiate on, and these are the lines we must draw with our elected officials.  Make their continued employment contingent upon the failure of this bill and other bills like it, because that's the only language these people understand.  Only by threatening to strip elected officials of their power can you hope to defend your liberties from their depredations.   

For State officials, the enemy is always information.  Transparency is something that our federal government loathes, and secrecy is always asserted as a cover by those engaged in some form of malfeasance.  Sunshine is the best disinfectant, but if your access to information is cut off, how can you hold your government to an account?  How can you know what it does, and how its actions will affect you?  The bill may be written in language which specifically restricts government action to emergencies, but in the hands of a judge, the tightest and most specific language can be construed broadly.  What is an emergency? Which emergencies merit a complete Internet shutdown, and which can be managed without a government shutdown?  What you must understand is that under our current system, the law is in fact whatever a judge says it is.  It is best to avoid the enactment of new laws completely, if the end result will be going before a judge in our legal system for clarification as to the breadth and depth of a particular law.  

In America, the answer according to government is always more law, and yet no matter how many laws we have, Pearl Harbor, the Gulf of Tonkin, and 9/11 still happen.  The answer is not more law; it is instead an accountable government forced to operate with transparency before the citizenry.  Only a government forced to operate before its citizens from its knees will understand the proper role of government relative to citizens.  This law, if it passes, will not restrict wrongdoers one bit.  It will only make more of us fall into the category of wrongdoers due to the capricious whimsy of whatever bureaucrat is appointed to oversee its implementation.  

This bill must be utterly destroyed, and its sponsors must be voted out as soon as possible. Senators Joe Lieberman, Susan Collins, and Thomas Carper are traitors to the idea that government should promote liberty and the free and open dissemination and distribution of information, with discretion over the information left to the people.   In the House, Representatives Jane Harmon, Bennie Thompson, and Yvette D. Clarke deserve the revulsion of their constituents and the country at large for their roles in sponsoring a House version of the Senate bill.  Remember these individuals in 2012 and beyond, and begin mobilizing to defeat them in the future.  They represent everything that it odious and dysfunctional about our government, and everything that is anathema to the concept of enumerated and limited powers at the federal level.  





For them, the enemy is information because freely held and distributed information is exactly what they fear most; moreover, their kind depend on an uninformed or misinformed electorate to stay in power.  Information is your ally as a citizen, and you must defend its continued availability and freedom from Executive Branch oversight and discretion in order to maintain your access to information in times of crisis.  Call, email, or write your elected officials in opposition to the 'Protecting Cyberspace as a National Asset Act of 2010.'  Be forceful.  No master should have to listen to his servants usurp power over him, and he certainly should not stand for his servants denying him information previously available to him. Your elected officials are your servants, and you have every right to talk down to them.  They're the hired help.  It's time they come to understand the proper nature of your relationship to them and to their office. Tell them that you oppose federal overreach of the sort proposed in this legislation, and that you support free and open access to information on the Internet at your own discretion.  



Posted via email from Screed of Momus

Egypt Afire, U.S. Guilty of Arson

For thirty years, the United States has given supported Hosni Mubarak openly and without reservation, primarily because Mubarak held Egypt's Islamists firmly in check without acting on any nationalist aspirations similar to those of Anwar Al-Sadat, who Mubarak replaced after assassins killed Nasser.  Since 1948, some $68 billion in aid has gone to Egypt courtesy of U.S. taxpayers.  Egypt's GDP is somewhere around $470 billion, and with the $40 billion in direct military aid we've given to Egypt since 1975 on the verge of falling into the hands of a potential upstart coalition which contains the Muslim Brotherhood, you can readily see how foolish it is to subsidize both sides of an arms race.




For six decades, the United States has done just that.  They've supplied Egypt, Jordan, Saudi Arabia, and Israel with weaponry, when the reality of the Middle East was that its people needed infrastructure.  Even with the majority of the world's oil, the Middle East relies on a market in London to set the price of oil. The price is denominated in dollars rather than any local or regional currency.


Anyone who has ever existed in poverty understands the prevalence of fundamentalist belief among poor and uneducated people. Poor individuals tend to be far more literal in their understanding of scripture, and more rigid in their interpretation of whatever scriptures they subscribe by virtue of their religious background. The simple truth of the matter is that any group of poor people who get a taste of consumerism are far less likely to go backwards into fundamentalism.  In point of fact, one of the tenets of fundamentalism regardless of religion is to avoid worldliness.


For six decades, the United States has believed in the power of guns and bullets to hold the Middle East in check.  By arming all sides, the U.S. ensured that no one side would gain too great a disparity in power.  The direct application of U.S. military force was seen as permissible when necessary; Desert Storm would be the most important applied example of this philosophy. What we had that was of greater importance, however, was our culture.  Our culture is lethal.


Saudi Arabian citizens don't care much for the United States or its policies, so much so that their countrymen boarded airliners to hijack them and fly them into the sides of American landmarks on 9/11.  They do, however, love Desperate Housewives and David Letterman.  Recent news reports have made much of this fact, but the truth of the matter is that when elections are held in such countries, fundamentalists win.  The Saudi royals permitted municipal elections in 2005, and the Salafi fundamentalists promptly swept the races.


Americans have their own putrid version of fundamentalist belief, whereby watching cultural rot on television can be reconciled with fundamentalist outlooks on gay marriage and abortion.  However, the end game of American cultural rot is consumerism.  We have an economy to sustain such a message, as our poor people are relatively prosperous compared to the rest of the world.  The problem with our export of culture bombs abroad is this: we've got the deadliest weapon around when it comes to combatting fundamentalism, a seed which erodes every bit of fundamentalist belief it comes into contact with, but we have no ground upon which to plant that seed.


The festering issue on the streets of the Middle East, from Tunis to Riyadh, is one of economic discontent.  The royal families who rule these regimes are not particularly competent or qualified to manage their countries and the natural resources that those countries sit upon.  As a result, they are squandering fortunes that could be put to use to better the lives of their people.  Moreover, they are autocratic to the point of being idiotic.  What sparked the revolution in Tunisia was simple: government agents took a fruit cart from an unemployed university student, thereby depriving him of his ability to make a living and gain sustenance for himself.  Decades of mismanagement and incompetence at the top of Arab society are trickling down to the lower echelons of Arab society, and people cannot earn enough money to eat and drink.


Even with democracy, they will be fertile not for Westernization, but for fundamentalism, because economic opportunity isn't going to spring up overnight as a panacea for six decades of abuse.  Fundamentalism provides people an external enemy to blame for their problems, and it is more potent for poor and desperate people than anything the United States has to offer in the form of a television show depicting lives of glamour and convenience far removed from the daily struggle of Arabs trying to subsist under government incompetence.


The United States contributed to this by funding arms buildups throughout the Middle East, by fostering relationships with autocrats who positioned themselves to be of convenience to our interest. We didn't much care that the governments we were dealing with were building a rather large problem we'd have to face later on in the future, because our interests were being facilitated short-term.  So long as those governments were amendable to our causes, the resentments of individual Arabs on the street were of no concern to us.


In Dubai, the rulers are struggling to restructure tens of billions of dollars in debt related to their constant building spree of the past decade, a spree of debt-financed construction that was directly enabled and encouraged by Western investors and banks.  Today, the United Arab Emirates is fronting billions of dollars to guarantee the gambles of Dubai, billions of dollars which could have been used to better the lives of individual citizens and provide for a day when oil was no longer viable as a means of supporting the Emirates.




The foolishness isn't confined to Dubai: Saudi prince Al-Waleed bin Talal announced plans in 2008 to build the world's tallest building, a building 5,250 ft in height costing nearly $7 billion.  It's part of a larger construction project with an estimated cost of nearly $25 billion.


What is the point?  Other than vanity and hubris, it's hard to see.  The average Saudi has no economic prospects, and the Kingdom of Saudi Arabia is beset by chronic unemployment.  Save the welfare extended to Saudis by the royal family out of oil proceeds, there's little if any real reason for Saudi's to be optimistic about a future that doesn't involve oil.


The United States, as the world's largest consumer of oil, has always been in a prime position to affect policy in the Middle East and to encourage investment in infrastructure that would generate actual jobs within the Middle East.  We haven't done so, and our failure to do so has been at our own peril.  When desperate people encounter desperate times and resort to desperate measures, demagogues and tyrants emerge from the corners to seize power.  Say what you will about Mubarak, and you can say a lot, but he's the best deal the U.S. has going in Egypt, and that fact alone says everything about our short-sighted foreign policy in the Middle East.  If Egypt is afire, the United States struck the match by encouraging and propping up three decades of excess under Mubarak's regime.


And as it turns out, the timing of the uprising in Egypt is quite fortuitous.  The Telegraph recently published an article and a cable demonstrating U.S. support for the Egyptian opposition, support which posited a possible uprising before the 2011 elections.  This calls into suspicion the idea that the uprising is entirely homegrown, especially given the fact that the chief candidate to take Mubarak's place is Mohamed ElBaradei, former head of the IAEA, and the man under whose watch Iran advanced towards the attainment of a nuclear weapon.  While reviews of ElBaradei's work concluded that there was no evidence of collusion with Iran on his part, the simple truth is that ElBaradei is a perfect candidate to co-opt any real revolution. He's connected to the very same groups and individuals who have advocated for Mubarak in the past, and those groups are part of an echo chamber loudly denouncing ElBaradei's house arrest while simultaneously calling for Mubarak to step down.




The man in the video below is Zbigniew Brzezinski, a member of the International Crisis Group along with Mohammed ElBaradei, and his relationship with ElBaradei and the various interests that underwrite their existence as members of the International Crisis Group and other such organizations gives one pause. Brzezinski has never been a fan of spontaneous democratic uprisings, and this is what he had to say in his book Second Chance on the subject of democracy in the Middle East: 

“One cannot entirely dismiss the suspicion that the most fervent advocates of “democracy” for the Middle East know this, but see in the promotion of democracy an expedient tool for the eventual imposition of force. Democracy becomes a subversive tool for destabilizing the status quo, leading to an armed intervention that is justified retroactively by the argument that the democratic experiment has failed and that the extremism it produced legitimates the one-sided employment of raw power."



It is easy to envision a future where the democracy planted in Egypt comes to embody the full fruit of extremism in the form of a government co-opted by the Muslim Brotherhood, and it is even easier to envision Western intervention to remove that government in the name of stability.  Democracy is, after all, a "subversive tool" if and when it is used to disrupt the status quo.  Stunningly enough, we are faced with just such a democratic uprising right now, and a candidate to co-opt real change in Egypt has emerged after a lifetime among the staunchest defenders of the status quo in globalism.  If Mohammed ElBaradei falls, it is of no consequence. The emergence of a Muslim Brotherhood dominated governing coalition will conveniently foster an excuse for further U.S. intervention in the Middle East, all wrapped up in the name of stability, which is, after all, the keyword used to justify three decades of U.S. support and bankrolling for Hosni Mubarak. 



Above photos: Zbigniew Brzezinski with another man the United States funded and supported way back when: Osama Bin Laden



The history of United States involvement in the Middle East leads to only one conclusion: the United States plays both sides against the middle, funding polar opposites with direct military and economic aid in the name of some illusory and often demonstrably delusional idea of stability.  In the end, the one thing that could achieve stability for the people of the Middle East is an investment strategy concentrated on building a consumer base, because only through consumerism can you defeat and obviate the forces of fundamentalism.  The vapidity of consumerism has been the most effective counterbalance to our own nation's fundamentalist streaks, and in the end, consumerism wins out every time over the rigidity and discipline of fundamentalism.  If Egypt is afire, and if Egypt burns as a result of fundamentalism re-emerging to the forefront, U.S. policy will be the lit match that ignited it all.  

The Paper Dragon

What we must all understand about totalitarian regimes is that they are prone to the sort of hyperbole present in the interactions of small children at play.  "My brother is so big that he could beat your father and your older brother up!" "Yeah?! Well, I have another brother who is bigger than your biggest brother!"  "Well, bring him out! Where is he at?"  "I don't have to show you! He's at football practice!"  On and on it goes, to no end and to no resolution, young children blustering about strength they wouldn't need to bluster about if they actually possessed strength.  

The Chinese air force has been reduced to clipping Top Gun in order to demonstrate their supreme might.  The J-10 fighter, supposedly the latest and greatest in Chinese air supremacy, is so great that it requires the aid of a clip from American cinema in order to appear truly fearsome in a way that equals its real might.  

That's right. The Chinese military released a publicity video for their latest high tech weapon consisting of a clip from the movie Top Gun.  This really shouldn't surprise anyone who's been paying attention to the Chinese and their shenanigans over the past ten years.  This is a nation that fudges its GDP numbers to the point where its own ministers admit the numbers aren't valid.  You have to understand that China's economy depends on foreign demand, so much so, in fact, that the U.S. comprises over 40% of Chinese GDP.  Now, it stands to reason that if the U.S. is in the throes of 16% real unemployment, with nearly half of its existing workforce underemployed to the point where they cannot pay their bills, demand for Chinese goods would have cooled, especially given the fact that American consumers can no longer tap their credit lines owing to the fact that the entire country is overextended.  Not so, according to the Chinese. In April 2010, the Chinese released GDP numbers indicating an 11.9% GDP increase year over year driven by a a 19.6 percent rise in industrial output.  Now, before the financial crisis had hit in all of its fullness, the Chinese were only averaging just over 6% GDP growth in the year-ago quarter.  



Moreover, the Chinese reported a 26% rise in factory investment.  Why? Why, with the world economy in deadlock, would you be investing in increased factory output and production capacity when there is no demand for it in the global economy upon which your entire GDP is built?  Simple enough: the Chinese had a stimulus, and they had to spend the money somewhere.  The fact that they spent in factories and fixed assets demonstrates the reality of stimulus spending: it's malinvestment on steroids.  You see, when a government prints up money to kickstart an economy, it very often does to kickstart sectors of the economy that were suffering.  There is no thought given to the possibility that perhaps the reason the sector in question is failing is that the individual manufacturers don't manage their resources well, or that real consumer demand is in fact down.  Governments simply throw gobs of money at troubled sectors and expect that the situation will resolve itself.  Well, if the problem is a failed business model coupled with a lack of real demand either as a result of shoddy products or a frozen credit market, no amount of money in the world is going to fix the issue.  

The Chinese have only ensured that manufacturing capacity in the world economy will perpetually outpace demand, and by doing so, the Chinese have slit their own throats by contributing to the potential for a supply glut.  When an excess of supply meets a lack of real demand, one thing happens: fire sale prices.  When an excess of supply meets an excess of credit-driven demand, one thing happens: a bubble that will burst with severity.  Either way, countries that engage in the sort of shenanigans that China is engaging in always arrive at a stunningly cruel reality check.  

The Chinese aren't merely leading the way in faked military power and fraudulent GDP numbers, they're building entire cities with no demand for occupancy.  As a result, the Chinese have cities with the capacity for 300,000 residents, but an actual residency of less than a tenth of that number.  The Chinese developers and financiers who built and bankrolled those cities have contributed to the biggest property bubble in human history, one that has yet to burst only because the Chinese have been so good at cooking their books.  There's Yunnan University, built to accommodate 2.3 million students, with an enrollment of just 11,000.




Everything the Chinese have done, all of their achievements, could and should be credit to currency devaluation and outright fraud in GDP statistics.  Without an artificially devalued currency that reduces most Chinese to lives of abject poverty, Chinese exports can't undermine domestic industries in the West.  It's that simple.  Without a central government manipulating statistics to present an artificially robust picture of GDP growth, the Chinese economy doesn't exist at its current level.  China is a paper dragon with termites feasting on its entrails as we speak, and for all of its bluster and bravado, the simple truth is that the only asset of value held by the Chinese consists of foreign currency reserves, because those reserves are the tools with which China pushes its own currency value downward. 

Say what you will, but the Chinese story is little more than a myth.  The Paper Dragon stalks the globe, its prowess depending upon compliant governments looking the other way because the Chinese mask their weakness by accruing their currency.  In many respects, the Chinese enable the governments of the West to obfuscate any market transparency which would reveal the true rot in the world economy just as we enable the Chinese by looking the other way when their embarrassing malfeasance becomes public information.  Why do you suppose it is that the Chinese are footing the bill for future rounds of European bailouts?  The survival of their myth depends on the perpetuation of our own.  In all the governments across the world, there is no appetite for a full, honest, and transparent economic accounting. 


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