Labor Day

There has been a lot of talk about “American Exceptionalism” recently. The left side of the political spectrum generally disdains the concept, while the right wishes to affirm it. The concept has many contours that we can debate, but one thing is clear, whether or not the United States of America is exceptional, it is clearly contrary. The evidence?

  • Nearly every country in the world uses the metric system for measurement; the U.S. remains committed to the “English” system, which even the English no longer use, at least officially.
  • The standard electrical delivery system throughout the world is 220 or 240 volt/50 cycle alternating current; the U.S. uses 120 volt/ 60 cycles (as do our immediate neighbors in North America).
  • Most nations generally ban or heavily restrict private possession of firearms. The U.S. constitutionally protects the right of private persons to keep and bear arms, with minimum restrictions. District of Columbia, v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010).
  • Almost every country somehow restricts freedom of speech and expression, including the so-called hate speech. The United States constitutionally forbids all manner of prior restraint of expression, other than incitement to imminent lawless action. Brandenburg v. Ohio, 395 U.S. 444 1969).
  • The rest of the world uses the color red to symbolize the political left and the color blue for the political right. The U.S. reverses this scheme of color-coding.

And, apropos to this weekend, most other countries mark their day for commemoration of labor and workers on “mayday,” May 1. The U.S. marks the first Monday in September as Labor Day.

Celebrating Labor Day in September, unlike the other contrarian characteristics mentioned, was not an accident or result of an evolutionary process. It was passed by Congress at the urging of President Grover Cleveland after the 1893 Pullman strike. Cleveland had used federal troops to get the trains moving again, based on his legal, Constitutional responsibility for the mail. He wished to reconcile his party (Democrat) with the U.S. labor movement. Choosing the September day was deliberate and meant to be a rejection of the socialist premises of the International Workers of the World. Leftist groups have several times attempted to change our Labor Day to their May 1.

Being a natural born contrarian, and libertarian (but not a lunatic), I applaud America’s exceptionalism here, now, and in the future.

Happy Labor Day

UT Professors’ Frivolous Suit Tossed

July 9, 2017

A federal court sitting in Austin this past week dismissed a lawsuit by three University of Texas professors who alleged that the Texas statute permitting license holders to carry concealed handguns on university campuses “chilled” their First Amendment rights. Judge Lee Yeakel ruled that because the professors had not shown a cognizable, imminent injury the court lacked subject matter jurisdiction to entertain their claim.

The claim advanced by the professors bordered on frivolous. The gist of their complaint was because they often discuss controversial subjects and issues in their classrooms, the presence of persons who may be carrying concealed handguns, albeit licensed after a stringent background check performed by the Texas Department of Public Safety, would inhibit discussions in the expression of opinions about which they might disagree. Judge Yeakel cited a number of U. S. Supreme Court opinions that disapprove the application of the First Amendment to such a patently ridiculous theory. Of course, the court’s opinion is restrained in characterizing the absurdity of the claim, but merely dissects the law and the alleged facts. This is appropriate. Strong language is for commentators and politicians, not judges. A dispassionate recitation of legal analysis provides more strength to the opinion.

The court’s opinion and order recites that the cases are dismissed “without prejudice.” This means that it is possible that a similar claim could be filed at a later date, assuming it alleges new facts. Generally, a dismissal for want of jurisdiction is without prejudice, for a number of esoteric legal reasons. The court did not reach the additional and alternative issue that the plaintiffs failed to state a claim upon which relief can be granted.

Even if the law did not permit licensed holders from carrying concealed handguns into classrooms, what would stop a determined, non-licensed person from so doing? A licensee would probably not carry for fear of losing their license. The statute defined “concealed” as “carried in such a manner as to not be discernible by the ordinary observation of a passerby.” One could tuck the gun under their shirt or carry in their purse, and who would know? All this means that the bad guy might have a gun and the good guy would not. Get real, folks.

For those interested in reading the actual opinion, it is styled Dr. Jennifer Lynn Glass, et al v. Ken Paxton, et al, No. 1:16-cv-845-LY, United States District Court, Western District of Texas, Austin Division, July 6, 2017, document #79. It’s available on PACER and probably many other on line sites.


Divided We Stand

July 4, 2017

It seems there is a never ending screech of politicians, pundits , academics proclaiming that America has never been so divided as it is today. Truth is, our nation has always been divided in matters of society, culture, economics and politics. The union of the Thirteen Colonies cam about because of a common purpose and common foe. Even so, many colonials were not in favor of leaving the British Empire. When independence was confirmed after a war that lasted seven years, quite a few loyalists were so distressed that they emigrated.

But for the most part, Americans have always shown a united front toward foreign enemies, particularly those who open the hostilities and who were a threat to United States interests. Post independence, the obvious exceptions were the War of 1812 and Vietnam, both of which were widely unpopular. The Iraq war is unpopular in retrospect, but was unopposed for the major action, except for a miniscule fringe. (World Wars I & II had their fringe opponents, too.) Nothing kept Americans more united in purpose than the 40 year Cold War with the Soviet Union. Of course, the prospect of nuclear annihilation in 30 minutes focuses the mind wonderfully.

At home, the division has always been palpable. The Constitutional purpose to ensure domestic tranquility has been imperfect at best. But public policy disagreements, which occasionally erupt into physical altercations, have served as a dialectic thesis. antithesis, synthesis. Perhaps the most fundamental tension is individual freedom versus security. Nearly everything else is a corollary. Direct conflict has nearly always produced a compromise that is heavier on the liberty interest. The result has been innovation and its unparalleled material success.

Professor Allen Guelzo of Gettysburg College gave an interview to James Taranto in the July 1-2, 2017 Wall Street Journal (“Divided American Stands — Then, and Now” – p. A11). Many will not agree with everything he has to say, but he raises points worth considering.

Independence Day greetings to all.



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The code in this post’s title spells out the name of its creator.

This week in 1845, one hundred seventy-two years ago this past week. He sent a message between Washington D.C. and Baltimore Maryland.

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Before that message was sent, human earthlings could communicate instantaneously only if they were in each other’s physical presence. Sending information meant writing it in symbols of one kind or another and physically sending the writing to recipients. Depending on the location of the recipients, it could take hours, days, or even months to reach them.

All that ended when Samuel F. B. Morse invented and built the first electric telegraph this device transmitted information at virtually the speed of light — instantaneously for practical purposes.

The method of coding, — dot and dash (or in sound, dit and dah) seems cumbersome to us today. And to transmit a complete message was not exactly instantaneous, but the code was refined over the intervening decades, ultimately becoming ones and zeros in digital devices. As was the media used, first copper wires, now electromagnetic waves.

Today it is not only possible for one on a fishing boat in the middle of lake in Texas to instantly communicate with someone else in Asia, the middle of the Pacific Ocean,  and even the moon. Obtaining the facility to do so is within the reach of almost any one, no matter their economic status.

What God hath wrought was in nature for eons. Morse discovered it less than two centuries ago. Remember this when you make the next call with your cellular smart phone.



“Bang the Drum Slowly” — Memorial Day 2017

Given the kind of war we have today, where any one of us could be on the front lines at any time, one of the most apropos observations for Memorial Day was the last line of the 2015 film Eye in the Sky.

In this terribly true to life fiction, a drone strike took out terrorists plotting to blow up a shopping mall in Kenya, but caused significant collateral damage. Afterward, the British Under-secretary of State criticized the general who made the decision to make the strike, calling his decision “disgraceful.” The general replied, calmly relating what he observed at the aftermath of five terrorist mass murders. He finished with a rebuke, also calmly delivered: “Never tell a soldier that he does not know the cost of war.”

Changing my Mind

The American Constitution Society and the Federalist Society often co-sponsor debates in various public forums on controversial constitutional issues. For those unfamiliar, the Federalist Society is an organization of lawyers that was formed during the 1980s to counter the left-wing bias in law schools in the courts. Its members are mostly conservative or libertarian. The American Constitution Society, on the other hand, and is often described as its progressive counterpart with a more or less leftward political orientation. Both groups are committed to civil debate of United States Constitutional issues, often those that cut across ideological lines.

These organizations recently sponsored a debate here in Dallas on the issue of whether there ought to be term limits imposed on United States Supreme Court justices.

The debate was not the kind of presentation we are used to seeing for presidential or other political campaigns where the candidates pontificate and tout their virtues and allege their opponents’ flaws and vices. It was presented in the traditional manner where a proponent of the proposition stated his case, an opponent stated his, and each side was permitted a shorter rebuttal. There was absolutely no talking over or interruptions. In short, unlike campaign debates, more light than heat was actually produced.

I have been a fan of term limits for public officials, including judges, for some time. My main reason is that unlimited incumbency tends to increase the power of legislators and executive officers in favor of special interests and at the expense of individuals. The longer one is in office, the more power, especially the informal kind that is what really matters, increases with knowledge the proclivities of fellow officials, not to mention the “skeletons in the closet” many politicians seem to have. Political office is almost unavoidably lucrative for the officeholder, and the position becomes an end in itself. Special interests, almost by definition, have continuous attention of lawmakers and enforcers. Regulatory capture, which means regulation that ends up favoring the industry or activity regulated, is a phenomenon known to anyone who has a cursory knowledge of economics. The necessity of standing for reelection periodically generally has no practical check on incumbency. Inertial forces resist change. Challengers are nearly always less well-known, and are at serious disadvantage unless the incumbent is guilty of some egregious offense or scandal.

The United States Constitution provides that judges of the Supreme Court and inferior courts serve “during good behavior” and their compensation may not be diminished during their term of office. In other words, their appointment is for life. The purpose of this tenure was to insulate the judiciary from politics as near as possible, and assure the integrity of judicial rulings.

A federal judge can be removed from office the same way as the President — vote of impeachment by the House of Representatives, and conviction and removal by two thirds vote of the Senate. Only one Supreme Court justice has ever been impeached, but conviction removal failed in the Senate. Slightly more than a dozen lower court judges have similarly been impeached — nearly all for criminal offenses and bribery — but less than 10 have been removed. (A number have resigned when facing probable impeachment.)

Supreme Court justices, once confirmed, are free to decide cases based on their view of the law and Constitution, and are supposedly immune from the political vagaries of the day. Presidents’ nomination of justices, and Senate approval, which has in a number of instances been spectacularly withheld, has been based primarily upon party politics and ideology. There is also recently been a consideration of the relative youth of the prospective justice, so the nominating President can extend his influence to well beyond his two-term limit in office. These reasons have led me to generally favor some sort of term limits for Supreme Court justices, and lower court federal judges.

After listening to a well-presented debate on the issue of whether Supreme Court term limits was a good idea by four Constitutional scholars, I have pretty much changed my mind.

The reason for the change is after the discussion I realized that, first, the proposed cure might be worse than this disease. This is primarily because if you had fixed terms of years, which would have to be staggered, every presidential election would be about the Supreme Court. Nearly every other issue would be subordinate.

Second, the debate illuminated that the real problem with the Supreme Court is not the unlimited terms. It is that the Court has, practically speaking, the absolute final say on issues upon which significant portions of the electorate strongly disagree. While the Court decides discrete cases and controversies that are based on facts certain, the rationales and the legal principles pronounced have far-reaching consequences. The abortion issue, has raged for 44 years, and poisoned politics ever since it was decided in 1973.

In my view, the problem with Roe v. Wade is that it decided an issue of public policy for the entire nation on which about which nearly one-half of the populace disagrees. It did the same on the issue of gay marriage, in an area that has always been the province of the states. Both cases summarily overturned state laws, which were legally enacted by the people of those states. These cases affronted the principles of federalism that underpin the Constitutional framework that has worked so well to mitigate differences in public policy across a diverse nation. The divisions in this country that the media continue to showcase and harp on, are a result of the pro-centralization and anti-federalist rulings of the court, as well as many statutes enacted by Congress and regulations promulgated by the executive branch. Statutes, however, can only be enacted by a majority, or in some cases, a supermajority of representative chosen by the voters. Supreme Court decisions only require the vote of five out of nine unelected judges.

The people of states who believe they are adversely affected by a Supreme Court ruling, should have a Constitutional means to challenge that ruling. Term limits the life tenure of Supreme Court justices will not solve this problem.