The Right, The Left, The Radical and the Conservative

I have said time and again that the lack of response to my efforts at an analysis of events causes me to have less and less enthusiasm for this endeavor.

However, I have also indicated that where I have a private exchange that I think might interest my readers, the work already having been done, I will continue to post and distribute.

In this case I received a succinct e-mail from Janet Wood, an American citizen residing in Toronto, Canada.

She wrote:

This was sent to me by a very Conservative friend.  It's succinct and I thought you might find it interesting.

For the article, which she sent, see here. The reader must read the article to comprehend the rest of the exchange,

My response was:

That is rather curious. Why would a conservative friend send this to you? It represents what is generally associated with a liberal viewpoint. Though I have a problem with the terminology that is in vogue. Increasingly, the Right wing view seems rather radical (not conservative) and the Left (don’t touch Social Security or Medicare) rather conservative.

But the article is right on the money as far as I am concerned. Here again I find the political debate often strained. The Right wants taxes “flatter." The liberal wing wants taxes on the wealthiest increased to generate more revenue. The Right says we generate more revenue by growing the economy. The liberal wing rarely responds to this. But of course growing the economy is the best way forward and we should all agree on this. The question is what is the best way to grow the economy? And the answer should be obvious. With 70% of the economy being generated by consumers, putting more money into the hands of consumers (i.e. those who will spend it, and those at the top who already have everything they want. will not) is the best way forward, provided the there is slack in the means of production, which there is.

The article points out that money in the producers is not being spent to increase production but rather to inflate the value of the assets. But increasing the productive capacity, without increasing demand can only bring deflation; just as demand outstripping production capacity will create inflation. Balance is all.

At this time consumers whether in the US or in Germany or for that matter in China are not spending enough and so these economies depend on export, but we can’t all be exporting economies and the US isn’t even successful in this area, since we have an unfavorable trade balance.

There is no economic justification for the tax system to favor capital over labor, particularly at a time where there is excess capital and not enough demand. We love to hold forth the Protestant work ethic, but then discourage work by this tilting of the tax code in favor of capital. But the tax code is even worse than most appreciate. Not only are Capital Gains taxes lower than earned income (labor) but we favor capital in myriad of ways that are not often even discussed, e.g. when assets with great gains are sold, a tax, albeit a relatively small one, is assessed, but if held and passed on by way of inheritance, the capital gains are forgiven and the beneficiary gets a new tax basis, so that if the beneficiary sells there is no tax (none) on the gains. This for some reason is never even discussed.

In the long run our economy will only thrive if we invest, and right now, as the article points out there is little investment in the private sector, and even less, in the public. If future generations are to thrive, and we keep hearing of generational theft, we must create the infrastructure that will give them prosperity. That means dealing with the greatest threat to their future in global warming, and building the equivalent of the railroads of the past. We need larger ports. We need better transportation. Our bridges are falling down and our highways are strangled with congestion. NJ Governor Christie in canceling the NY-NJ rail tunnel undermined a vital project for regional and national prosperity, and even though this was first proposed by the Giuliani Administration, got very little push-back.

Above all our future depends on the education of our children. We neglect that at our peril.

P.S. And Canada thinks only of the tar sands.

Which prompted this insightful reply:

Thanks for your response.  It is always a pleasure to get you going because you always have something "meaty" to say!

I am hoping they sent me this because they are experiencing a change of view, if not heart.  These two voted for our notorious Mayor Ford because he was going to control spending and reduce taxes!  The fact that he was unfit was visible then if one cared to see.

And it's not just the tar sands; it's fracking as well.  I am very worried about water and the cavalier way they contaminate it.  Water is a quiet worldwide issue--Ethiopia damming the Nile, the Kurd territory having the water and Tibet as well--no wonder China is going to keep it.

I have to say I find the world a much scarier place then I used to.

Prompting this extensive expression of my views:

I agree with you that water is the canary in the coalmine.

It is indeed a worldwide issue and future wars will not be fought over oil but over water. This along with climate change will bring about the greatest migration in the world’s history, with huge causalities from people drowning, and from bullets, as countries try to keep hordes off refugees from overrunning their borders. I dread to think about the future. I will not live to see the cataclysm, but I fear that my daughter and certainly my granddaughter will.

But I have to disagree with you about fracking. When considering whether something needs to be stopped, consideration of alternatives must always be evaluated. Let us be frank. The US, Canada, China, indeed the world, need an abundant energy supply. Nothing will change that. The only question is from what source. Ideally, it is renewable clean energy, from the sun, wind, and even tides. Maybe some day atomic fusion, (not fission) but not for a long time. 

But these are all still very inadequate and very expensive. What happens in the meantime?

Allow me to quote from NPR:

"Despite a slowdown in U.S. consumption, coal is poised to replace oil as the world's top energy source — possibly in the next five years, according to the International Energy Agency. The rise will be driven almost entirely by new energy demands in China and India, the IEA says. 

"'This report sees that trend continuing. In fact, the world will burn around 1.2 billion more tonnes of coal per year by 2017 compared to today – equivalent to the current coal consumption of Russia and the United States combined."   "Together, China and India will account for more than 90 percent of the rise in demand for coal over the next five years, according to the IEA. "The agency predicts that coal's growth trend will hold everywhere in the world except the United States, where it says the wide availability of cheap natural gas brought a decline in coal demand — a situation also summed up in a recent post by NPR's State Impact team."

As can be seen from the above the problem is coal. Anything that replaces coal is a plus. Oil is better than coal; natural gas is better than oil.

Fracking has created a huge windfall for the US’s energy supply. It has the potential to free us from Mid-East oil and even for the US to become a net-energy exporter. That is good for our economy and for the world’s economies, as well on the amount of CO2 that goes into the atmosphere.

Yes, it has the potential to poison our water supplies and that makes it very dangerous.

But fortunately proper regulation can obviate most of that. I quote:

"On Monday, Governor Pat Quinn signed legislation to regulate fracking in the state of Illinois. Legislation overwhelmingly passed both the Illinois Senate (52-3) and the House (108-9) last month. The law is now seen as the nation’s strictest for oil and gas drilling.    

 "The Chicago Tribune writes that the legislation will force oil and gas companies to register with the Department of Natural Resources. In the permitting process they must detail:  

• how the well will be drilled 

• the amount of fluid used and at what pressure 

• how it will withdraw water, contain waste, and disclose the chemicals used 

  

"Additionally, a 30-day public comment period begins seven days after the Department of Natural Resources receives a permit application; and people who suspect fracking has polluted their water supply can request an investigation forcing the Department of Natural Resources to investigate within 30 days and reach a determination within 180 days.”

Other states are in the process of adopting regulations.

The answer in my view is proper regulation The alternatives to fracking are far worse than fracking, and if we look at fracking’ downside, without evaluating what happens without it, we follow a destructive path.

And then added:

Since writing the e-mail below I came across an interesting article in the New York Times.

This is an area of pollution and misery that cannot be overlooked.

I particularly call your attention to the following paragraph:

"The developed world needs a smarter approach toward cleaner fuels. The United States has been showing the way. Hydraulic fracturing has produced an abundance of inexpensive natural gas, leading to a shift away from coal in electricity production. Because burning natural gas emits half the carbon dioxide of coal, this technology has helped the United States reduce carbon dioxide emissions to the lowest level since the mid-1990s, even as emissions rise globally. We need to export this technology and help other nations exploit it.”

We do not live in a world where the ideal is the practical.

 Comments, questions, or corrections, are welcome and will be responded to, but will only be published at my discretion.

The Supreme Court vs. the Constitution (Addendum)

I keep wanting to devote my time to activities other than my blog, but questions keep nagging at me, and question beget the search for answers, and once the research is done it behooves one to publish.  And so here we go again!

In Gerald Walpin’s book "The Supreme Court vs. the Constitution" at page 21, Walpin asserts:

“We start that analysis by making clear that the Constitution did delegate to the Supreme Court the duty to decide whether actions taken by legislatures and governmental executives are constitutional.”

But did it?

That was a question that immediately raised itself in my mind upon reading it. To be sure that power is unquestioned today. But that doesn’t make the assertion quoted above true. As one who studies American history assiduously, I recalled how unimportant the Court was considered to be in much of our history.

I remembered for instance that the Court had not received its own home until 1936. That until then, while the President lived and worked in the White House, and Congress had its own great chambers in the Capitol, the Court occupied various spaces in the United States Capitol building. See here. It simply was not considered important.

I remembered that the generally accepted wisdom was that there was no recognition of this power until it was asserted by Chief Justice Marshall in MARBURY v. MADISON, 5 U.S. 137 (1803) and then after asserting the power the court did not exercise it. In fact when the court handed down its infamous Dred Scott v. Sandford, 60 U.S. 393 (1857) decision that was the first time the Court had actually exercised that power, or to put it another way, the court had not attempted to assert that power for some 70 years.

This history, plus various reading of American history, which suggested that George Washington considered it his duty to judge constitutionality and that this would be the basis for most vetoes and other indications led me to the conclusion that this power was not intended to be given by the Constitution to the Court.

But as always, I wanted to confirm my impression, and so I went to the Federalist Papers, that extensive collection of essays written primarily by Hamilton and Madison as part of their successful attempt to sell the States on the merits of the Constitution. I expected to find corroboration that Walpin was wrong on that point as well.

Well, as I have always said, facts first. The facts showed me to be wrong. At the very least it was the opinion expressed in the Federalist Papers that that power had been given and had been intended to be given to the Court. Walpin was right on this point.

However, the founders assumed that the court would be held in check by the threat of impeachment if they overstepped. Yet in the history of the Court only one Justice has ever been impeached and none have ever been removed. See here.

For those who like to go to the original sources and want to read the relevent portions of the Federalist Papers, I refer them to here.

The point, however,  is that on this issue, my initial impression was wrong, and Walpin was right.

The Supreme Court vs. the Constitution (Discussion)

At the end of my last post entitled "The Supreme Court vs. the Constitution" I stated: “Comments on the above are welcome and will be responded to, but will not be published or posted. However, the discussion that followed has been so interesting and informative that I do want to share it with you.

So here goes...

Robert Malchman, Esq. of Brooklyn, NY was brief in his remarks. He wrote:

I believe you have the better of the argument, and the errors are quite stunning.  Even in his rebuttal, Mr. Walpin gets Griswold flat wrong.  That case had nothing to do with people being secure in their homes; it was an appeal of petitioners' criminal convictions for selling birth control devices.  Searches and homes, and the Fourth Amendment were irrelevant.  The Court instead found a right to marital privacy, which included the purchase of contraceptives.

As is my wont, I was not equally brief. My response is below:

Yes, I was surprised that he had such a poor defense. It wasn’t just Griswold, The case he cited to support his Declaration of Independence argument, as you can see from the quote, says just the opposite. And how anybody can talk about religion in the public square and totally ignore the 1st amendment is beyond me.

I was surprised because Walpin has always been rather brilliant. At CCNY where we went to school together he was President of the Student Council and I think an editor on one of the newspapers. He took on the President of the college and made him back down. He then went to Yale where he became Editor in Chief of the Law Review. He clerked for two federal judges and then joined the US Attorney’s office, where he was in charge of the prosecution of Roy Cohen, Sen. McCarthy’s sidekick.  He then joined the Rosenman firm where he soon made partner and became the head of its 65 person litigation department. After Walpin retired Bush II appointed him as Inspector General of the Corporation for National and Community Service See here. Obama fired him.

Regardless of the virtue of his Tea Party positions, I would have expected his book to be on more solid ground and his debate with me to be more lucid. Surely his briefs in his law practice must have been argued with much greater skill.

I also noted that he resorted to an attack on his critic rather than relying on the merits of the argument, saying:

"I thank Mr. Scheller for his candor in conceding that, before he read my book, he had already decided that he would not agree with its conclusions. While I will not spend my time responding to each nit-pick that those who read my book (with a closed mind) claim to find…”

The other comment came from Leonard Levenson, Esq. of Manhattan, NY. He wrote:

I have read your review of Walpin's book, his rebuttal and your sur-rebuttal.  Without going into specifics, it seems clear that Supreme Court decisions turn a blind eye to the doctrine of Stare Decisis.  The court does so for 2 reasons:  First, it is an institution respected and admired by the vast majority of the people.  I believe the court receives a favorable rating of 78% of the country; a  remarkable percentage in these days of political division and the obvious politicizing of the Court.  Compare this with the favorable rating of 18% for congress and 44% for the presidency. Because of this respect and prestige they are able to make an imprint upon our life based primarily on the Social and Economic views of the justices. 

 
Secondly, Stare Decisis has limited importance where the Court under discussion is the court of last resort. I suspect that the Court from its inception was a political institution.  It increased its political nature as its prestige increased.   

      

The Supreme Court in the 1930's, in combating Roosevelt and the New Deal measures was acting from a social, economic and political point of view; certainly not from a judicial.  The court members were mostly appointed by the Harding, Coolidge Hoover presidencies and were largely chosen from the empowered elements of our society.  They mirrored the thinking of the 20's just as the Warren Court mirrored the thinking of the 60's (despite the fact that Warren was a Republican and voted to intern the Japanese during WWII). 

     
For the reasons stated, it seems that Walpin's message misses the point, completely.  Simply stated, I believe each Supreme Court justice interprets the constitution more with an eye to his social philosophy and political tone of the times that by a strict adherence to the intention of the founders or the idea of Stare Decisis. 

          

As an aside I did not research the appointment history of the Supreme Court justices of the 30's.  Knowing you excellent reasoning ability, your thoroughness in research and enjoyment of the intellectual battle, I tremble when I cite facts to prove a point to you.

Prompting my very lengthy annotated reply:

You are correct about my " thoroughness in research” because I believe in facts first and then opinions, as opposed to the current trend toward opinions first, and we will invent facts to suit the opinions, which was very much in evidence in Walpin’s very poor defense of his views.

So let me begin by correcting your comment, "First, it is an institution respected and admired by the vast majority of the people.  I believe the court receives a favorable rating of 78% of the country;”

In fact the Court like the rest of our governmental institutions is held in low esteem. Your “facts” are very much out of date. 

Allow me to quote from the Rasmussen Reports as of September 26, 2013: 

"Just 26% of all voters think the Supreme Court is doing a good or excellent job, down from 28% in June. Just as many (26%) rate the Supreme Court poorly, but that's down, too, from June’s all-time high of 30%”. See here.

I think that was a major factor in Justice Roberts deciding to break with his Right Wing colleagues, and uphold Obamacare on the basis of a valid tax, though not on the Commerce Clause, by which, I believe, he hoped to keep his agenda of striking down liberal laws by restricting the Commerce Clause, while improving the standing of the court. It didn’t work. The Court’s reputation continued to decline, as it infuriated the Right, while doing nothing for the views of the Middle or the Left.

The Court, I believe, was in very high esteem after the Nixon fiasco, where the country felt the court had saved our Constitutional system.

Now let me address your next comment, namely, "The Supreme Court (members) in the 1930’s ... " were mostly appointed by the Harding, Coolidge, and Hoover Presidencies and were largely chosen from the empowered elements of our society. 

This is correct! That court consisted of Charles E. Hughes, Owen J. Roberts, Benjamin N. Cardoza appointed by Hoover, Willis Van Devanter appointed by Taft, George Sutherland and Pierce Butler appointed by Harding, James C. McReynolds appointed by McKinley, Harlan Fisk Stone appointed by Coolidge, and Louis D. Brandeis, appointed  by Wilson.

Thus only one Justice, Louis D. Brandeis was appointed by a Democrat, Wilson. But that should come as no surprise to anyone, since Republicans held the Presidency for 12 years, similarly to the 12 years of Republican rule in the White House during the Reagan/ Bush years and the 20 out of 28 years if you count the Reagan to Obama years, where we had Republicans in the White House continuously, with the break of Clinton for 8 years.

I assume that in raising the question of who appointed  the Supreme Court Justices you assume that this is a predictor of how they will vote. But that has not been true through most of our history, and is a relatively recent phenomenon.  As I point out above 8 of the 9 Justices were appointed by Republicans, which one might assume would mean that the votes striking down New Deal legislation would be 8 to 1, but that was not the case.

Most decisions were five-to-four with only four Justices consistently voting to strike down New Deal legislation, and the fifth vote coming from various other members. See here. Also here and here.

Just when appointments became predictors of how a Justice would vote is something I have not researched, but I suspect it started with Nixon’s southern strategy when he made two nominations of outspoken racist Southerners G. Harrold Carswell and Clement Haynsworth for the vacancy, but the Senate rejected them. I suspect that from that time on, Presidents made nomination not on the basis of qualifications, but on carefully vetted political and judicial philosophies. 

You say: Stare Decisis has limited importance where the Court under discussion is the court of last resort. This is an important point and I think that what this whole discussion leads to a conclusion that Walpin, you and I might be able to agree on. The Court is too powerful!

But that has long been a view and various proposals to reduce the Court’s power have been proposed. After the Court struck down the New Deal legislation, "Public anti judicial sentiment intensified; many critics questioned the constitutionality of the concept of judicial review itself. As a result of this reaction, several constitutional amendments were introduced into Congress in 1936, including one that would require a two-thirds vote of the Court whenever an act of Congress was declared unconstitutional; another that would permit Congress to revalidate federal laws previously declared unconstitutional by repassing them with a two-thirds vote of both houses, and even one that would abolish altogether the Court's power to declare federal laws unconstitutional." But they went nowhere.

However, Roosevelt’s court packing plan, which was denounced by many even in his own party, seemed to have the desired effect, causing one of the Justices to change his votes to validate New Deal legislation, resulting in the famous slogan: “The switch in time that saved nine”. See here.

But with life expectancy short Roosevelt was able to replace all nine Justices with his own choices by 1941. See here.

We talk about equal branches of government. But to quote George Orwell "Some are more equal than others.” Congress is balanced off by having two branches and subject to a veto by the President and by the Supreme Court. The President can be checked by Congress’ refusal to pass the legislation he desires and by the Supreme Court, but the Court can only be over-ruled by an amendment to the Constitution that needs 2/3 of both Houses and 3/4 of state legislatures, an almost impossible task, and the power of the Court has been enhanced by the longevity of life expectancy and the tendency of Presidents to choose Justices who are young, thus extending their philosophy long after another President or Presidents take office. It is unlikely that Obama will be able to change the philosophical nature of the court, since the only Justice likely to retire (or die) during Obama’s remaining years is Justice Ginsburg, whose replacement by Obama will not change the balance.

But you fall into the Walpin trap when you talk about "strict adherence to the intention of the founders”. That, of course is the concept of “Originalism”, which I denounce in my response to Walpin. For many reason, including the one set out in the Preface of the book co-authored by Robert Bork entitled LOCATING THE BOUNDARIES: THE SCOPE OF CONGRESS'S POWER TO REGULATECOMMERCE to which I refer in my post, that is a concept that has zero merit. Aside from the reasons mentioned in this book, the founders intentions have been radically altered by the 27 amendments to the Constitution, and to go by what their intentions were, is to ignore all these amendments. Let us remember, that the founders intended that slavery be part of our institutions, so that if we go by their intent, we must ignore the 13th, 14th, and 15th amendments, and accept the juridical maintenance of slavery.

Furthermore Justice Scalia, along with Thomas and Kennedy, have rejected legislative history as a guide to interpretation. See here at p.182 and what is a reference to a founder’s intent, but the use of legislative history. Legislative history on a document many times amended, is doubly absurd.

But I think you also fall also into the fallacy of equating both progressive interpretation of the Constitution with those who are interested in protecting, to quote from your comment, "the empowered elements of our society”. To understand that we have to look at how the 14th amendment has been abused. This amendment was intended to empower the newly freed slaves. Section 1 provides:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So whom did the Supreme Court choose to protect with this amendment in its earliest interpretation. The newly freed men? No! It was "the empowered elements of our society”. The Supreme Court in its first interpretation of the amendment in the The Slaughter-House Cases, 83 U.S. 36 (1873), chose to protect the rights of the "Butchers' Benevolent Association’ and set in motion the use of the amendment to thwart all social and labor legislation. Was that the intent of the authors of the amendment? Clearly, NO! But that is the  point of all this Originalism. It is insincere and phony and is never used when it doesn’t bring about the right result.

On the other hand to use the language in a manner that is appropriate to a modern understanding of its language, is the only approach that makes any sense. What “cruel and unusual" punishment was in the 18th century clearly is not what it means in the 21^st century.

Finally, Levenson had some concluding observations:

I agree with you that in the past Supreme Court Appointees have often surprised and disappointed the President appointing them.  I suspect that this is true with regard to Earl Warren, Cardoza, Brandeis, Stone and others.  I think you are also right about recent appointees who seem to remain faithful to their economic, political and social philosophies more so than those of the past. 

 What I did find interesting and what surprised me was your comments about efforts to limit the power of the court to declare laws unconstitutional. I was under the impression that Roosevelt's court packing was the only effort to combat the courts powers to declare a law unconstitutional.  On reflection, such ideas have merit. 

 Requiring more than a simple majority of the justices to overturn a law has the virtue of removing political considerations from their decisions except in the rare situation of a court almost totally appointed by Presidents of a single party.  With regard to treating Court decisions as a judicial veto, which could be overridden, I think this would complicate an already overburdened legislative process.  

The Supreme Court vs. the Constitution

An erstwhile friend, Gerald Walpin, Esq., who I introduced to his wife some 50 years ago, but who ended the friendship soon thereafter, has surfaced, publishing a book titled "The Supreme Court vs. The Constitution," which is available on Amazon. 

Out of an interest in the writings of one out of my past, I bought the book, read it, reviewed it, and published my review on Amazon.

This led to an exchange that I want to share with you. It consists of three parts: My review, Mr. Walpin’s rebuttal, and my sur-rebuttal. 

Publishing all three in one post makes this very long, but for whatever it is worth, here it is. (I am no longer writing for my blog, but continue to post that which I write in other contexts.)

My Review

I have to say that I was deeply disappointed by the quality of this book. While I did not expect to agree with its conclusions, I expected its reasoning and its analysis to be beyond compare. My expectations in this regard derived from the authors undoubtedly brilliant career as is set forth in the latter pages of his book and which did not even mention the author having been awarded the American Inns of Court Professionalism Award for the Second Circuit.

Unfortunately, while the book gives great pretense to being a scholarly work, boasting 881 end notes, it falls flat not only for its distortions, but for its glaring omissions, not to speak of its inaccuracies. In the final analysis it ends up being no more than a screed in support of its undoubtedly sincerely held opinions. In summary, the book concludes that every Supreme Court decision that Walpin likes is one that is anchored in the Constitution, while every decision it dislikes is denounced as judicial activism, and even as being anchored in the jurist's “personal views”.

In its very early pages (at pages four and five to be exact) the author criticizes Justice John Roberts for having voted to uphold the individual mandate in the Obamacare statute on the ground that it is a Constitutionally permissible tax and asserts that this was, “an interpretation that no other justice joined."

This is quite a remarkable assertion since a glance at the opinion reveals that Justice Ginsburg, with others joining wrote:

“I agree with THE CHIEF JUSTICE that the Anti-Injunction Act does not bar the Court’s consideration of this case, and that the minimum coverage provision is a proper exercise of Congress’ taxing power.”

But quite aside from taking the Chief Justice to task for not striking down a clearly constitutional act of Congress, Mr. Walpin lauds the five Right Wing Justices for having all agreed that the Act does not stand constitutional muster under the Commerce Clause.

On this subject he chooses not to mention the view expressed by President Ronald Reagan’s Solicitor General, Charles Fried:

“Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story….” [The full transcript of the interview can be found here.] 

Walpin then goes on to assert that the country’s “foundation documents” are “The Declaration of Independence and the Constitution." Now I do not want to belittle the importance of the Declaration of Independence, which was a resounding assertion of the Colonies right to rebel against the British crown. But it has no legal standing in our jurisprudence. It was written long before there was anything resembling a United States. It was published in 1776. Even the Articles of Confederation were not adopted until 1781 and the Constitution, which is the country’s foundational document, was not adopted until 1787. So why does Walpin make this rather far fetched assertion. We find out when we turn to Chapter IV of Walpin’s book. He asserts in the heading to the Chapter, (no less) “FROM GOD AS THE SOURCE OF ALL RIGHT TO THE BANNING OF GOD."

Now Walpin’s problem here is that God in not mentioned anywhere in the Constitution. There is no mention of a deity; there is no mention, of “the laws of nature and of nature’s God”; there is no mention of “Divine Providence.”

The only mention in the Constitution of religion is in the very first amendment of the Bill of Rights, known as the “Establishment Clause” and it states: “Congress shall make no law respecting an establishment of
 religion, …” That’s it. And Walpin devotes a chapter to discussing God in the Constitution and never mentions this inconvenient clause of the Constitution and then berates the Court when it gives voice to this Constitutional mandate.

I could go on chapter after chapter citing these errors of omission and commission, but that would make this review intolerably long. So let me mention just one other deliberate distortion. In discussing the seminal case of Roe v. Wade, which legalized abortion, Walpin gives the impression that the concept of a Right to Privacy was first enunciated in Roe. In fact it was put forth in Griswold v. Connecticut, 381 U.S. 479 (1965) a case that gave constitutional protection to contraception. Why was this not mentioned? I suggest it was because a right to contraception is not controversial.To a large extent Walpin argues for a theory often ascribed to putative Supreme Court Justice Robert Bork known as “Originalism”, which to a large extent acts as though the Constitution had never been amended, the Civil War had never been fought, and particularly the 14th and 15th amendment had never had been enacted. Yet Justice Bork himself appears to now have repudiated this doctrine.

In a book that he co-authored [It can be found here.] there is set forth in its Introduction: 

“Regrettably, but perhaps inevitably, ‘[t]he ink was not yet dry on the Constitution when its revision began.’ Almost immediately, Congress began pressing beyond specifically enumerated powers granted it in Article I. As a result, today, Americans encounter a national government far more expansive than the Framers and men of their generation could ever have imagined…

“Uncertainty stems, in part, from the recognition that the scope of the commerce power has expanded so far beyond the original understanding of that power's boundaries that any attempt to adhere strictly to its original meaning today would likely be futile and inappropriate… “There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them.”

And at a later point he goes on to say: “When the world has changed but the underlying constitutional principle remains, the task for those ‘in this generation [is] to discern how the framers' values, defined in the context of the world they knew, apply to the world we know.’ The world we know includes the long-standing jurisprudence on the commerce power because ‘[w]hen there is a known principle to be explicated the evolution of a doctrine is inevitable."I wish I could say positive things about a book written by one with such a brilliant career, but alas, I cannot.

Walpin’s Rebuttal:

I thank Mr. Scheller for his candor in conceding that, before he read my book, he had already decided that he would not agree with its conclusions. Significantly, he doesn't even dispute the basic lesson of my book - that a majority of justices have too frequently substituted their personal views for what our Founders intended the Constitution to mean, many times also ruling contrary to earlier Supreme Court precedents.

While I will not spend my time responding to each nit-pick that those who read my book (with a closed mind) claim to find, I will exemplify the basic error in Mr. Scheller's comments by responding to two of his meritless assertions. First, he proclaims that the Declaration Of Independence has "no legal standing in our jurisprudence." That assertion disregards about 200 Supreme Court opinions that cite the Declaration Of Independence. Here is one example, Cotting v. Godard, a 1901 opinion, very telling in its words that directly controvert Mr. Scheller's criticism. First, the Court referred to the Declaration Of Independence as the "first official act of this nation" that "declared" this government's "foundation" - just the word Mr. Scheller chastises me for using. And then the Supreme Court repeated what it had said in an 1886 opinion: "It is always safe to read the letter of the Constitution in the spirit of the Declaration Of Independence," i.e., the Declaration Of Independence, where relevant, should be considered in deciding the meaning of the Constitution.

Let's also look at the specifics of what Mr. Scheller was arguing when he asserts the current irrelevancy of the Declaration Of Independence. According to him, the Declaration's recognition of God as "the source of all rights" was rejected by the adoption of the Constitution. He fails to explain how the same generation, including eight of the same people who signed the Declaration and were also personally involved in drafting the Constitution, would only 11 years later suddenly discard God from that central place of recognition in our Country. Also, he is forced to ignore, because it cannot be reconciled with his exiling God from our Country, the many examples in my book of our Country's succeeding generations' reaffirmation of the Declaration's recognition of God, in placing "In God We Trust" on our Country's issued money, and choosing it as our Country's motto.

A second Mr. Scheller's meritless attacks on my book: He faults me for "giv[ing] the impression that the concept of a right to privacy was first enunciated in Roe" in 1973. He cites Griswold v. Connecticut, 8 years before Roe, as having given "Constitutional protection to" person's privacy. Mr. Scheller ignores several pages at the beginning of this chapter, where I relate that the Constitution's Bill of Rights created a right to privacy in the specified contexts of those provisions, such as, "the right not to have the privacy of one's home, property, and body violated by any unreasonable search (Fourth Amendment.)" Unlike what Mr. Scheller asserts, the 1965 Griswold case was nothing more than a reaffirmation that the Fourth Amendment protected husbands and wives in their home from an invasion of police to determine if they were using condoms or other birth-control devices. See this language from the Griswold opinion: "The Fourth Amendment explicitly affirms the `right of the people to be secure in their persons, houses ... against unreasonable searches and seizures," not "allow[ing] the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives." This was a quote from NAACP v. Alabama, 377 U.S. 288, 307. This was consistent with a 1967 Supreme Court decision - 2 years after Griswold that rejected "a general `right of privacy'." Thus, when Roe suddenly "found" a general right to privacy, it was creating a right that the Court, six years before, had ruled did not exist.
Enough said. Mr. Scheller can continue his nit-picking, to which I will no longer respond. I prefer instead to leave the evaluation of my book to those who read it with an open mind.

My Sur-Rebuttal:

Mr. Walpin thanks me for my candor “in conceding that, before (I) read (his) book, (I) had already decided that (I) would not agree with its conclusions. That should not be a surprise to him since, as he well knows, I am thoroughly familiar with his views, but even if I weren’t, the endorsement of his book by Professor Yoo, the author of the infamous torture memo, would have given more than a clue.

But in an age when most people only read that which they expect to agree with, Mr. Walpin should give me credit for reading that which I had every expectation would be opposite to my deeply held views. Be that as it may, Mr. Walpin should thank me, for nothing propels an interest in a book more than controversy, and I note that since I posted my critique the number of people who posted favorable comments on his book went from one to three.

But allow me to respond to Mr. Walpin’s post.

Mr. Walpin writes in his rebuttal: “Significantly, he doesn't even dispute the basic lesson of my book - that a "majority of justices have too frequently substituted their personal views for what our Founders intended the Constitution to mean, many times also ruling contrary to earlier Supreme Court precedents.”

Indeed I do not dispute that a majority of justices have too frequently substituted their personal views for what the Constitution provides, many times also ruling contrary to earlier Supreme Court precedents!” But Walpin turns the situation on its head. It is the Robert and the Rehnquist courts that have consistently used a bare 5-4 majority to strike down years of precedent and been a far more “activist court” than any in recent memory. Allow me to quote from Professor Winkler’s excellent essay to be found on the SCOTUS blog here.

“Since John Roberts became Chief Justice in 2005, the Court has issued one landmark ruling after another. The Roberts Court gave us Citizens United, which struck down longstanding limits on corporate political spending. This Court also allowed new restrictions on women’s right to choose; became the first Supreme Court in American history to strike down a gun control law as a violation of the Second Amendment; effectively outlawed voluntary efforts by public schools to racially integrate; and curtailed the reach of environmental protections.

“In many of these decisions, the Roberts Court overturned or ignored precedent, including Rehnquist Court decisions less than a decade old. Prior to Citizens United, the Supreme Court had explicitly held in two cases that corporate political expenditures could be limited – the most recent of which was handed down in 2003. Six years before the Roberts Court upheld the federal ban on “partial birth” abortion, the Rehnquist Court, which wasn’t known for its liberal leanings, had overturned a nearly identical law.

“Of course, the Roberts Court isn’t the first to overturn precedents and issue major rulings. Yet this Court has been uniquely willing to do so by sharply divided 5-4 majorities. The Warren Court’s Brown decision was famously 9-0. New York Times v. Sullivan, which freed up the media to discuss public figures, was decided by the same margin. Gideon v. Wainwright, on the constitutional right to counsel, and Loving v. Virginia, invaliding bans on interracial marriage, were also unanimous. Even Roe v. Wade was decided by an overwhelming 7-2 vote.”

And this quote from Professor Winkler does not even touch upon the unprecedented decision in Bush v. Gore where the court took the unprecedented step of choosing the next President of the US by a partisan 5-4 decision, nor the very recent decision in SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. where the court struck down a statute specifically authorized by the 15th Amendment, which provides: 

“SECTION. 1. The right of citizens of the United States to
 vote shall not be denied or abridged by the United States or by 
any State on account of race, color, or previous condition of servitude. 

SECTION. 2. The Congress shall have power to enforce this 
article by appropriate legislation.” 

The power was given to Congress to decide what the appropriate remedy is, not the court’s. Yet SCOTUS by 5-4 decided that Congress used bad judgment, and took it upon itself to declare unconstitutional that which the Constitution expressly authorized Congress to decide.

But let me now return to Mr. Walpin’s attack on me. He refutes my contention that the “Declaration of Independence” is not the law of the land and claims “200 Supreme Court opinions that cite the Declaration Of Independence.” He then goes on to say, “Here is one example, Cotting v. Godard, a 1901 opinion, very telling in its words that directly controvert Mr. Scheller's criticism.”

But its words don’t, and it doesn’t.

Allow me to quote from that decision, “such declaration of principles (referring to the Declaration of Independence) may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, …” (Emphasis added).

Did Mr. Walpin think I would not bother to read the decision?

But in insisting that the Declaration of Independence somehow overrules the clear mandate of the Constitution, “Congress shall make no law respecting an establishment of 
religion”, he insists on pretending that this language does not exist. He then asks me to explain: “How suddenly (the founders would) discard God from that central place of recognition in our Country”. But they didn’t! They simply said, as the Supreme Court has held, that it is not the Government’s place to be involved in religion. It belongs in the private sphere, and that has served this country well.

But then Walpin goes of the rails on the Courts history on “privacy” and goes from distorting to dissembling.

In writing about the Griswold case, Mr. Walpin writes and I quote “Unlike what Mr. Scheller asserts, the 1965 Griswold case was nothing more than a reaffirmation that the Fourth Amendment protected husbands and wives in their home from an invasion of police to determine if they were using condoms or other birth-control devices.”

But that is patently untrue. The defendants in the Griswold case were charged with, and I quote from the Court’s opinion: “(giving) information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.” 

And the statute that was before the court in the Griswold case provided in Section 54-196: 

“Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”

Does that sound like it was about police invading anybody’s home?

Mr. Walpin accuses me of “nit-picking”. Does the exposure of such fundamental misstatements amount to “nit-picking”?

There should always be room for differences of opinion. But the misrepresentation and/or distortion of facts is inexcusable. This has become far too frequently the realm of our political discourse. I had hoped for something far better from Mr. Walpin, and I still hope for something better from him in the future.

Comments on the above are welcome and will be responded to, but will not be published or posted.

America’s Place in the World (Still More Discussion)

In my last post entitled "America’s Place in the World (More Discussion)" I set forth my exchange on this subject with Herb Reiner of Cedar Grove, NJ, and then set forth a somewhat lengthy exposition on the subject by Albert Nekimken of Vienna, Virginia.

I decided that I can most effectively juxtapose my views against Nekimken’s by interlineating my comments directly into his. I do so by showing Nekimken’s text in italics and my responses in bold type. Those who may want to re-read Nekimken’s views without distraction can do so by referring to my last post "America’s Place in the World (More Discussion)."

I found myself agreeing the most of your reply to Eric Offner, Did you? It doesn't sound that way! even while remembering that FDR's record was not unblemished: despite all of the admirable decisions that he made, which you summarize, he also refused to admit boatloads of desperate Jewish refugees, such as the ship St. Louis, that was ordered to turn around and return to Europe. 

I don't believe that this is a fair criticism. The immigration laws were clear, and these refugees were not eligible for entry under those laws. I don’t think Roosevelt had the power to ignore those laws. Also disappointing, recent biographical scholarship has revealed the extent to which he shared the general anti-Semitism of people of his class and times. Again I disagree! There is no indication that Roosevelt had anti-Semitic views. To be sure Cordell Hull, The Secretary of State did, but to a large extent Roosevelt was unaware of this, until much later when Morgenthau brought it to his attention Roosevelt was shocked but did not feel there was much he could do about it without shaking up his Administration and he wasn't about to do that.

Your rejection of Eric's list of historical sins of America on the world stage was justified insofar as it has been used as a justification for refusing to take action in Syria today. Nevertheless, it reminds us that nations, including America, make geopolitical and diplomatic decisions based mainly on contemporary perceptions of national interest, not according to high principals of morality. Not every Administration is equally guilty of this. Democrats are much more given to humanitarian considerations, than Republicans.  Clinton acted in Bosnia and Obama in Libya. Carter was always concerned with Human Rights.

More troublesome was your conclusion that the world needs a policeman and the U.S. should accept the mantle of that role because it can.

While I accept and even applaud some of our recent interventions, such as in Bosnia that were a relative success, or in Somalia, which failed, Somalia didn't fail! We didn't act! Overall I think your conclusion is flawed for the following reasons:

The listing below I think is the crux of your argument.

·As Eric's comments suggested, the reputation of the U.S. has been tarnished. The rest of the world is quite suspicious of American motives and tends to fly into a frenzy of conspiracy speculation about them rather than admire us for spending money and taking risks to "do the right thing" wherever that motive takes us. True! , But we can change that perception, if we follow a consistent policy that puts greater emphasis on human rights than national Rights. Can we do that politically, doubtful, but it is worth striving for.

·We also can't undertake the responsibility of being the world's policeman because most of the world rejects our authority in this role, even if a minority welcomes it. This ambivalence results in a high potential that our efforts will continue to have unintended, or counterproductive results. Not so! Neither Bosnia nor Libya had that effect.

·We can't afford to be the world's policeman in terms of either money or manpower. How reminiscent of the mood in 1939. Expensive foreign interventions risk pushing our debt to arguably unsustainable levels while our economy remains weak and the need for domestic spending rises due to demographic changes, globalization, automation and other factors that are shrinking the size of the tax-paying workforce to historic lows. Limited intervention does not have very high costs and non-American lives have just as great value as American ones. Neither Bosnia nor Libya had a major impact on our budget. Iraq is always the bugaboo but that was the wrong war with the wrong commitment.

Also important, we can see from the results of the Iraq and Afghanistan interventions that the detrimental effects on our own military--individual soldiers, preparedness infrastructure and stockpiles--have been considerable and were likely understated. At least one-third of the soldiers returning from those battlefields bring with them serious, lifetime mental and physical disabilities that will require expensive attention for many decades.

But you and those likeminded keep coming back to Iraq and Afghanistan.  Those are not relevant models and references to those are misleading and inapplicable.

·For this reason, new initiatives that put the U.S. in the role of world policeman will inevitably catalyze the trend now underway to replace human soldiers with increasingly automated drones and other robotic equipment. 

This will happen regardless of anything else. Technology, not policy drives this. 

·Even if this trend shows some success on financial and tactical grounds, it exposes us to very dangerous moral dilemmas. Automated drones are being now prepared for global deployment that will either not require human direction, The will always require human direction though from a remote location. or will prevent it as a measure to counter cyberterrorism. As this trend accelerates, so does the probability of error, collateral deaths and anti-American agitation. Only a Defense Department order prohibiting the use of self-piloted drones has prevented their deployment for now.  I don't understand this. Self piloted drones are in use. However, this prohibition will not last indefinitely and it has no effect on the rest of the world where the cost of conducting ever more deadly terrorist operations continues to fall along with fading moral scruples against launching strikes with inexpensive drones or chemical weapons. But this is not relevant to policing atrocities.

Worse, automated drone warfare risks depriving attacks of any identifiable geographical address. We attacked Afghanistan and Iraq because they were perceived to be harboring terrorists. In the future, we may not be able to identify either the source location or even the identity of the sponsors of terrorist activity. It's difficult to be an effective policeman when you can't locate the criminals. Now you are talking apples and oranges. Dealing with terrorists is something we are doing, and will continue to do. It has its challenges as you point out. But it has nothing to do with intervening when mass slaughter on the scale of the Nazis, or in Bosnia and/or Kosovo or in Rwanda, takes place, and as we saw in Bosnia and Libya, it does not require boots on the ground, or even huge expenditures. You are raising a great many irrelevancies and bugaboos.

·Returning to Syria, there seems to be general agreement that, if it had been possible for the U.S. to use military force to quickly eliminate Syria's chemical weapons, we probably should have done so. However, to attempt to do this without a U.N. mandate, without good intelligence about the location of the weapons (which have already and obviously been dispersed or hidden), there was a high probability that our effort would have failed and only worsened the situation. Chemical weapons have not been the issue until now! It has been the slaughter of peaceful demonstrators. Right then and there we should have told Bashar al-Assad, stop or there will be consequences, followed by drone attacks on airfields and on anti aircraft batteries until his capacity to use those weapons was suppressed. Anti tank weapons, to the secular forces would also have made sense.

·Even Israel next door was ambivalent about the wisdom of a unilateral attack on Syria's chemical stockpiles by the U.S.  Nobody has suggested an attack on the chemical weapons.  Such action would only have pleased Saudi Arabia, which continues to sit on its hands and treasure, refusing to risk either--and Turkey whose president, Erdogan, has deployed only his big mouth and volunteered the U.S. to undertake all the risks and costs.

·Erdogan complains with justice that no country has even stepped up to help the refugees who have fled Syria and are living under desperate situations in neighboring countries. Erdogan is absolutely right! His country is bearing the brunt of caring for Syrian refugees, while we are doing nothing to help them. He is in no position to unilaterally take on Bashar al-Assad. (Apparently, such spending doesn't pump money into the hands of defense contractors or create many jobs in American congressional districts, so it has little appeal.) This last is unworthy of you! As you well know I am not looking for spending more on armaments and the humanitarian actions I am urging, have nothing to do with defense contractors. They will do very well regardless.

The slaughter of innocent civilians, whether Jews in Germany or the Soviet Union, or Slavs, or Africans, cannot be permitted. Better that we can unite on it, but it cannot be tolerated unless you feel that the worlds polices toward the Jews in the Holocaust was right. Russia or for that matter China cannot be allowed to be the dogs in the manger, who continues the defense of the indefensible and the absolute obstacle of humanitarianism.

It seems to me your instincts are pacifist and even suggest isolationism, which after Iraq and Afghanistan has gripped the country, just as it did after the WWI.

Final comments, questions, or corrections, are welcome and will be responded to, but not distributed.