America’s Place in the World

As some of you may have noticed, (I fear that most did not even notice) I discontinued my blog postings following my post of "The Silence is Deafening" when that post did not end that silence.

I have no desire or intention to discontinue that self-imposed exile, since my efforts continue to be unrewarding.

However, when I have an exchange on a topic of interest with a friend and the work of writing is already largely done, I intent to post for whatever readership may still remain. And so my exchange follows.

Eric Offner of Manhasset Hills, NY sent me two e-mails that I quote below:

Sorry about your blog when you could analyze Obama's Tuesday speech and the horror of chemical warfare in Syria and US greatness. You could have explained ten million gallons of Agent Orange, which are killing people to this day. We can include napalm on list of chemicals; depleted uranium munitions can also be included. You know well that one needs clean hands to obtain equitable relief.

And then in a separate e-mail:

Common Dreams: "Halliburton Pleads Guilty to Destroying Evidence in Gulf Disaster." 

  

Another item for your blurb. 

$200,000 fine. 

I hope this encourages you to resume.

My response to Offner, who is a Holocaust survivor like me, but first fled to England and then to Brazil before coming to the United States, was:

Your comment makes no sense at all. To savage the country that gave you and me refuge is a travesty. You particularly had many choices. You could have made England your home, or Brazil. But you chose the U.S. There must have been a reason.

Ditto for my relatives who came to the United States after World War I and whose presence here saved my family and me. They chose the U.S. over all other countries, despite the fact that it always had a lot of warts, not the least of which was its racism and its anti-Semitism. After all this country was born in slavery and has never completely shed its past.

But like what Winston Churchill said about Democracy, i.e. "It has been said that democracy is the worst form of government except all the others that have been tried." can also be applied to nations, i.e. the U.S. is the worst country in the world until we look at the others, most particularly in foreign policy. 

You talk about this country’s sins in Vietnam! Have you looked at the atrocities committed by the French? I have been to Vietnam, they are bitterer about the French then about the Americans.

Btu whatever sins we committed more than a half century ago are rather irrelevant on the question of our role in preventing atrocities in todays world.

But if you want to go back in history, the most relevant period occurred almost four score years ago. As Hitler besieged Britain, threatened the whole world and slaughtered Jews, Gypsies, and countless others, FDR's desire to assist Britain with arms shipments were opposed by these same isolationist voices, who wanted us to turn inwards, who proclaimed that our racist policies at home gave us no warrant to criticize others and besides with unemployment at record highs we should worry about the home front. Roosevelt had to employ subterfuge in what he chose to call "lend/lease" to hide the fact that there was no loan and no lease. He was aiding Britain in its hour of need. It wasn't enough! Without our entry into the war before it was too late Hitler would still have prevailed, Russia's heroic defense notwithstanding. But American isolationism tied Roosevelt's hands, until Japan foolishly solved the problem for Roosevelt by attacking, followed shortly by a declaration of War by Germany and Italy. Even then there was little desire to aid the Jews. It was not our problem.

After the war we declared: "NEVER AGAIN". It was meant not just to apply to Jews, but to all atrocities against mankind. But the voices of nationalism, the voices that spoke of "National Interest" domino theories, and exit strategies, caused us to engage in all the wrong conflicts, including Vietnam. But even before Vietnam we foolishly arranged for the CIA to overthrow the Democratically elected Prime Minister of Iran, Mohammed Mosaddegh and installed the hated Shah; we overthrew the duly elected government of Chile in 1973 and since Vietnam, we foolishly intervened in Lebanon in 1982, invaded Grenada in 1983, and invaded Panama in 1989. 

But when the Rwandan genocide occurred, much to our shame, we sat on our hands while Tutsi's were slaughtered, but there was no national interest, just as there was no national interest in preventing the slaughter of Jews and Gypsies. Much to our credit, we intervened when the breakup of Yugoslavia led to slaughter in Bosnia and Kosovo. When Clinton with NATO decided on a bombing campaign that eventually led to a breakup of the country and the end of the slaughter, we heard "where is the exit strategy", where is the "National Interest." But it was our finest hour! No boots on the ground, no American casualties, but mission accomplished!! Not the phony "Mission Accomplished" of Bush after the fall of Saddam Hussein. Libya too, despite its warts, stopped the slaughter and belongs in the success column.

Obama is up in arms about the use of chemical weapons in Syria. He is right to be up in arms, because better late than never. But where were we when Saddam Hussein used chemical weapons against the Kurds in his own country. Where were we when Saddam used chemical weapons in his war against Iran? Where were we when Hafez al-Assad, the father of Bashar al-Assad, massacred 20,000 of his own people in Hama in 1982? To quote from The Guardian, "The 1982 massacre is regarded as the single bloodiest assault by an Arab ruler against his own people in modern times and remains a pivotal event in Syrian history."

We are told that Syria is a civil war that we should not get caught up in. But so was Spain a Civil War in the 1930's. Had we taken sides there or when Mussolini invaded Abyssinia, or when Hitler occupied the Rhineland, the whole history of the Holocaust and WWII might never have happened.

But is it a Civil War? Have we forgotten its beginnings? How people peacefully demonstrated, and Bashar al Assad mowed them down just like his father did 30 years ago. We fight the wrong wars and then use that as an excuse not to fight the right ones. Bush I was right to fight Iraq for invading a peaceful neighboring country. Clinton was right to enforce a no-fly zone over Iraq and sanction them for their treatment of the Kurds. Bush II and the Congress were even right when they decided that unless Saddam gave up weapons of mass destruction we would do it for him. And the build up of weapons was successful in forcing Saddam to let the inspectors in. But when the UN inspectors found that there were no such weapons the raison d'être was gone, but Bush didn't care. He wanted the war, and all else was pretense.

And so because we fought a wrong war, nobody wants to help a people being slaughtered. When the Left and the Right agree something is wrong. Syria is not a civil war. It is a revolution. Our failure to arm the secular revolutionaries has empowered and strengthened the fanatics. Arming the rebels and enforcing a no fly zone was and is the right thing to do.

It is late, but not too late.

Why should the U.S. be the policeman of the world? Because we can and no one else can. The world desperately needs a policeman.

As for your comment about laches, you well know that laches applies to a party seeking relief. The U.S. is not seeking any relief from any judicial body or from anyone.

Even though I have discontinued my commentaries, Comments, questions, or corrections, are welcome and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified.

The President’s re-election (More Discussion V)

In my last post "The President’s re-election (More Discussion IV)" I continued the debate with Roger Streit of West Orange, NJ. Even before this I had considered discontinuing the publication of these debates, but an enthusiastic interjection from Michael A. Cerrato, J.D. Esq. of Westville, NJ who exclaimed “Wow, this is a great exchange” encouraged me to keep sharing the debate with my readers.

When I posted "The President’s re-election (More Discussion IV)" I had thought that this would conclude the debate, But now I received another very provocative presentation from Louise Mayo, Ph.D, Professor of History Emeritus, from Pittsburgh, Pennsylvania, who wrote:

I have been following your complex discussions with interest. I found your comments about gun ownership very helpful and learned some things I did not know about gun ownership. 

I did want to comment on the debt discussion and its significance. First, in answer to your query, the debt was 40% of GDP at the height of the Great Depression. It rose to 120% by the end of World War II. (It's about 102% today - up from 98% in 2010). Clearly the economy improved as the debt rose as a result of government money injected into the economy. Your, I assume, sarcastic suggestion that we could quadruple our Defense budget would actually work. That is, any money creating jobs and income would be effective when the economy is weak. Presumably, however, there are better long-term ways to accomplish the same ends -- infrastructure building and repairs, education, research etc. The experience of FDR in his second term when he cut back too soon and threw a recovering economy back into a severe recession and the British experience today show that attempts to lower debt and balance the budget on the backs of a weak economy are counter-productive. Borrowing rates will never be as low again as they are now. Interest on debt as a share of GDP has been declining and is now 1.5%. Due to low interest rates, only 2% of the principal goes to service the debt, down from 7% in the 1980s. We should be investing in those long-term improvements I mentioned earlier. We could cut back on real waste, try to identify ways in which we can save money in the health care system, close some tax loop holes and then, think about more serious savings to kick in once the unemployment rate falls below, perhaps, six percent.

My response thereto was rather lengthy and therefore rather than burdening the reader with too long a post, I am saving my rebuttal for my next post, which will be entitled "The President’s re-election (More Discussion VI)."

In the meantime at the risk of causing this discussion to go on ad infinitum I still invite:

Comments, questions, or corrections, are welcome and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified.

The Media in General and the New York Times in Particular

I have denounced our media again and again. I wish to God that such denunciations could be focused on the lying machines of Fox News and the vicious demagoguery of Rush Limbaugh, or other clearly Right Wing Media. Unfortunately, the so-called liberal media is failing us. Its editorials, more often than not are fine, but its more important feature articles leave much to be desired.

I have written about this time and time again. Please, please, read my blog posts "The Media III - Falsehoods about Kerry" and even more important "The Media II - Falsehoods about Gore."

The editorial pages of the New York Times and the Washington Post usually say the right things, but the news and feature stories are far more important, and they too often go for the sensational, or the just plain sloppy.

What has set up my ire today is a front page article in the New York Times entitled "Payroll Tax Cut Is Unlikely to Survive Into Next Year."

Here is what the article says at paragraph three: “Independent analysts say that the expiration of the tax cut could shave as much as a percentage point off economic output in 2013, and cost the economy as many as one million jobs.”

But at paragraph 10 it says: “independent economists say that the economy could shoulder the payroll tax increase without undue harm.”

Who are the independent analysts? Who are the independent economists? Is there a difference?

The author doesn’t say.

But that’s not all!!! The article goes on to say, “Many Republicans vehemently opposed its passage last year, as it would divert money from the Social Security program.”

Really? Since when do Republicans worry about diverting money from a program they have long wanted to gut and abolish. But in fact, the program doesn’t divert money from the Trust fund. Under its provisions any revenue lost to the Social Security Trust Fund must be, and is made up out of general revenue. See the applicable IRS Bulletin. 

But the New York Times article doesn’t tell us that. It leaves us believing that the reduction in the payroll tax negatively impacts the Social Security Trust Fund and the long-term viability of SS. This is simply not true.

But I don’t want to single out the New York Times. I focus on that paper because I read it more than any other and so its sins of omission and commission come to my attention more frequently.

But let us not overlook the highly regarded PBS Newshour, which was recently reprimanded by its ombudsman, for presenting a segment on global warming saying ” … it is wrong to create an artificial or false equivalence…”

But this is not the first time that the Newhour, a program I watch religiously, as being one of the few good news programs on the air, gave false information, or sought a false equivalency. While I have no proof, the fear of a funding cut-off from Republicans in Congress undoubtedly makes the program careful not to allow truth to offend those who hold the purse strings. What we need is for enough money to pour into PBS for it to be endowed with funds making it truly independent of outside pressures.

I could undoubtedly go on and on about our inadequate media, but neither my time nor my readers patience will allow that.

So let me close with a reference to Fareed Zakaria on CNN last Sunday and in the Washington Post on September 26 where Zakaria in effect assumes that Romney is so vague about his budgetary plans, that if he gave out more details he would offend his Tea Party base. Why does Zakaria assume that the real Romney is the centrist who governed Massachusetts, despite all evidence to the contrary? The evidence for those who choose to have their eyes and ears open is that he has in fact become the Tea Party acolyte he appears to be, and that he is vague about his plans, not because he is afraid of offending his Tea Party base, but because he is afraid that he would lose most of the centrist voters, and maybe many of those 47%, non-income tax-paying voters who amazingly still support him, if they knew of his real plans.

And so his plans are a secret, just as his tax returns are secret, for the more we know the fewer votes he would get.

But to me the attempted false equivalency infects the news media. If the Republican Party adopted the Flat Earth Society platform we would undoubtedly soon have debates in our media on the subject of whether the earth is flat.

But it is not only false equivalency. It is the echo chamber. Once a certain paradigm is set, no one questions it. Thus we hear again and again how “no sitting president facing an unemployment rate more than 8% has won another term since Franklin D. Roosevelt.” and this is repeated over and over again, often without mention of FDR’s re-election. The message becomes, intended or not, that no President deserves re-election with such an unemployment rate. But what is left out of this equation is that no President since FDR has inherited an economy as bad as this one, and somehow that is rarely if ever mentioned. If the one is constantly repeated, shouldn’t the other? But the media is stacked. Not the liberal way, as we keep hearing. But subtly, ever so subtly, in favor of the Right. But this is never enough. The attacks on the media as being too liberal will keep on coming, and the media ever craven will accommodate, and move further and further right to stop the attacks, which will never, ever, stop until all we get is clones of Fox.

Supreme Court on the Health Care Reform Law & the Ryan (Republican) Budget

In my last post "Control of the Weather (Discussion II)," I said that I would postpone my discussion entitled “It’s All About Race” because the comments on my previous post were still coming in, and I wanted to share that discussion. Now I feel I have to postpone the discussion on race again, because there have been developments that I cannot ignore.

On the politicized and run away Supreme Court I concluded in my last post with the following observation:

When we know how a justice will rule by which party appointed him/her, then it is an extension of the party, and no longer a judicial forum.

The seriousness of the politicalization of the Supreme Court is now put into the bright spotlight by President Ronald Reagan’s Solicitor General, Charles Fried, who makes these cogent observations. To get the full import of these observations one needs to read the whole interview, which can be found here. But here are some telling quotes:

Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress. 

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 other thing is I think it’s Justice Kennedy who said this fundamentally changes the relationship of the citizen to the government. That’s an appalling piece of phony rhetoric. There is an important change between the government and the system. It was put in place in 1935, with Social Security. And it said everyone has to pay into a retirement fund, and an unemployment fund. It was done when Medicare came in the ’60s. That’s a fundamental change. But this? This is simply a rounding out in a particular area of a relation between the citizen and the government that’s been around for 70 years…. 

Politics, politics, politics. You look at the wonderful decision by Jeff Sutton, who is as much of a 24-karat gold conservative as anyone could be. He is a godfather to the Federalist Society. Look at his opinion. Or look at Larry Silberman’s opinion. I don’t understand what’s gotten into people. Well, I do I’m afraid, but it’s politics, not anything else. 

And so the Supreme Court has gone from anointing the President of the United States in Bush v. Gore, to throwing out all restraints on the influence of money in politics in Citizens United v. FEC, to deciding that Congress my not legislate anything that its Party doesn’t want.

Is this the end of Democracy, as we have known it? I hope not, but I fear that it may be.

But this is only one area where the extremity of the Tea Party-dominated Republican Party can be surmised.

The Ryan budget, which has been endorsed by Republican Congressional leaders and by the presumptive nominee, Mitt Romney, clearly tells us where they want to take the country. It is the most radical and dishonest budget ever proposed by a major party.

First unlike the first Ryan budget, which by its own figures never approached any attempt to balance the budget. “Mr. Ryan's (first) plan added (by its own claims) $6 trillion to the national debt over the next decade…” See here and here.

This new one, which passed the House with 10 Republican defections and not a single Democratic vote, does claim to balance the budget. But it is not clear when or how. I have spent hours searching the web for this information. Those discussions I have been able to find charge that the Ryan budget would add trillions to the debt. 

The only place I have been able to find an analysis is in a 98 page document put out by Ryan in PDF format, which for those who want to read all or part can be found here. The most relevant page in that document is page 75 which you can find here. It states: “The non-partisan CBO estimates that this budget will balance and begin to produce annual surpluses by 2040, and it will start paying down the national debt after that.” But this is an outright lie!!! I cannot find any CBO evaluation of this budget. Nor could they evaluate it, since the budget talks about eliminating many tax expenditures (also known as tax exemptions) but does not set forth what they are to be. How a bill can even call itself a budget, when it has no specificity on where and how money is to be raised, is a mystery. But they call it a serious budget. It says: “Relative to the President’s budget, this Budget shows more than $3 trillion in lower deficits over the next ten years.” Where does the money to be obtained from elimination of tax deduction exclusions, or exemptions to come from? Which are to be eliminated. The so-called budget doesn’t say.

What it does say are generalized claims that are not backed up by any specifics. But specifics are what the CBO and the American Public are entitled to. Where will the money from deleting tax expenditures come from. Which budget items are to be reduced and by how much, and what would the real world consequences of such cuts be? Does it provide money for our space program? What happens to future generations of people, who are not yet 55, my children and yours, my grandchildren and yours? What does it do to our infrastructure – of the needed bridge repairs to bridges that are falling down? What does it do to education? What happens to early childhood education, to Pell Grants for College students? What about Medicaid? Ryan says we can’t afford to pay for these things. Instead of raising more revenue, he says, we need to reduce revenue, to make sure that we can’t afford these things. Our present taxes are way below where they were under Ronald Reagan. Why don’t we return to the Reagan tax system? They laud Reagan, but will they adopt his level of taxation?

Let us take page 17 which you can find here. This deals with defense. Item one on this page is not controversial, but the security of the US is provided for by many factors not only by the size of the defense budget. Item two “…defense is not the driver of the debt burden.” This is kind of strange – it seems self evident that any expenditure as well as any cut in revenue adds to the debt. It is absurd to say that an expenditure, whether desirable or not, does not add to the debt. In the next paragraph he (Ryan) states the “The President … imposes nearly $500 billion in defense cuts over the next decade.” “The President imposes”? Just as Romney can’t repeal laws passed by Congress, the President can’t impose defense cuts. Congress does that. See here.

The $500 billion sequester in the Defense appropriation was provided for in the Budget Control Act of 2011, which passed the House by a vote of 269-161 with 147 Republicans voting for it. It passed the Senate by a vote of 74-26 with 55 Republicans voting for it.

The Romney/Ryan axis seeks to gut the present and the future of the United States, in order to increase the wealth of the wealthiest at the expense of everyone else. What kind of a future will we have for our economy without an educated work force, and with consumers too poor to provide the purchasing power that drives the economy. Are we going to attempt to be an export economy? But even that isn’t going to work without enlarging our ports to service the large ships that are becoming the future vessels of the world.

But how radical is the agenda. It repudiates not just Franklin Roosevelt; it repudiates past Republican Administrations. This is a whole new kettle of fish. Listen to a representative of the Cato Institute talk about past Republican Administrations. See here where you can get both the video and the transcript. 

Judy Woodruff: “(Obama) is suggesting that what Paul Ryan is suggesting is much farther right than even these other Republican presidents, what they've done."

Daniel Mitchell: "Well, that's because both Nixon and Bush were both big-government interventionists."

If these Republicans were both big-government interventionists, what about Eisenhower who built our Highway system, or for that matter Reagan who did not hesitate to increase taxes to deal with our then deficit and who saved Social Security instead of ending it for those under 55.

This Republican Party has little in common with the policies of past ones. It is a wrecking crew.

As for the claim of class warfare, is it class warfare to resist polices that would enrich the upper-upper classes at the expense of the middle classes and the poor, a trend already underway, but which the Ryan/Romney policies would expedite.

It should be remembered that the last time class was mentioned it was when Franklin Roosevelt was accused of “Being a traitor to his class.” Isn’t’ that class-warfare? But the real class warfare is the insistent demand that we keep re-distributing wealth upward.

Last, but not least, I recommend to the reader an article which appears in The New Yorker titled "Call That A Budget?" 

Comments, questions, or corrections, are welcome and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified.

The Deficit – One Big Hoax (Part I)

This is undoubtedly a startling statement to make in the light of all that is coming out of Washington and from our media. But the statement is absolutely true.

We have stopped questioning the urgency of resolving the deficit because we have now been pounded with this proposition for many month, more than a year, by the media, by the Republican Party, and now even by our Democratic President.

But none of this makes it true! Well it is fair to ask, if it is not true then why are all these sources more or less on the same page. I submit that each has its own rationale.

Republicans have created most of this deficit and are now trying to panic the country into dealing with it by draconian cuts, I submit with deliberate intent to justify their long sought goal of decimating all the social programs and regulations, going back not only to Franklyn Roosevelt, but even to his Republican namesake, Theodore Roosevelt, who was President from 1901 to 1909.

The media because in part they slavishly report what any political mouthpiece declares without questioning its validity, and in part because much of the media is the mouthpiece of the Republican party, such as the media empire of Rupert Murdoch e.g. in New York City of Fox News, The New York Post and the Wall Street Journal to mention just a few and the rest because it is safer to go along then to strike an independent course.

And finally, the President, because once this has become a truism in the public mind, it is political suicide to try to oppose it.

But those of us who try to go beyond the “common wisdom” can, and indeed should, always question that which has become accepted by constant repetition.


In fact many articles have been written raising questions, but I will refer to one in particular because it is not a political one, but appeared in a stock market advisory letter published by Fidelity Monitor in its May 2011 issue.

I quote the pertinent portions of the article:

Predictions of doom and gloom have become the latest sensation. Media hounds tell us the Federal debt will grow unchecked. Inflation will surge. Foreigners will unload treasuries. The dollar will crash. From the pundit’s point of view, bold predictions get you air time. And if you’ve made a number of wrong predictions, like PIMCO manager Bill Gross has, you’ve got nothing to lose by throwing another one out there. Especially if the publicity helps bring new money into your bond fund...

A high level of government debt, by itself, is not enough to cause a currency to collapse – if it was, the yen would have gone bust over a decade ago…

But the doom and gloomers seem convinced that Congress will remain gridlocked for the next 20 years while deficits grow unchecked. Even if that’s what ends up happening, it still may not necessarily tank the dollar. It would probably take a decade for the Federal debt to reach 200% of GDP (comparable to what Japan has now). By then, a positive trade balance could make it relatively easy to finance with domestic capital, just as Japan does…

The newsletter industry has it own cadre of doom and gloomers. Some have been perma-bears since the 1970s. The Hulbert Financial Digest has tracked some of these guys throughout the years, and they have horrible track records. Fear, it turns out, does wonders for selling books and attracting television viewers, but in the long run it destroys value.

Once you embrace a doom and gloom theory, there can only be a bad outcome. Sooner or later, conditions improve, and your portfolio misses out on the rewards that come with a solid investment strategy.

For the full article see here.

Now let me address my assertion that Republicans have created most of this deficit. In 1992 at the end of the G.H.W. Bush Presidency, the deficit stood at 300 billion dollars. By the end of the Clinton Presidency in 2000 we had surplus of in excess of 200 billion dollars. At the end of the G. W. Bush Presidency in 2008 we had a deficit in excess 400 billion dollars and a recession bordering on a ’29 depression to boot.

To be sure, as Republicans have claimed, the deficit accelerated markedly during the first year of the Obama Presidency, but of course the recession cut tax receipts markedly and required substantial additional outlays, but despite this, the Council on Foreign Relations, as can be seen from the chart above, projected a substantial decrease in the deficit in the years to come, based not on a cut in expenditures, but on the assumption that the Bush tax cuts would not be renewed, which as a result of the Obama compromise with Republicans did not occur. But if nothing else it shows how canceling the Bush tax cuts would by itself have made a major dent in the deficit without any cuts. This, I believe was a major blunder on the part of the Administration and one that I cannot understand.

But let me be clear! The deficit does matter! It needs to be reduced over time. But there is no urgency about doing this, and it can, and should be done with some targeted cuts, which I will identify hereafter, and with mostly revenue enhancement.

But I have up to this point not adequately covered my contention that the deficit was created with deliberate intent to justify their long sought goal of decimating all the social programs, as well as regulations that benefit the general public, going back not only to Franklin Roosevelt, but even to his Republican namesake, Theodore Roosevelt, who was President from 1901 to 1909. In order to keep this post within reasonable length, I will address this in my next post, which will be named “The Deficit – One Big Hoax (Part II)”

Roosevelt and the Great Depression

On March 3, 2009 I distributed my commentary entitled, “The Stimulus Bill,” which is posted here.

I concluded with, “they are now even going so far as to rewrite the history of the Roosevelt New Deal. Now we hear that the New Deal was totally ineffective and that it was only World War II that saved the economy.

Thus the Right Wing, Heritage Foundation, published an article on its web-site on January 9, 2009 entitled, “More federal spending: New deal or raw deal?” They then published a graph issued by the Department of Commerce, which I reproduce below: The amazing thing is that anybody who takes the time to actually examine the graph will quickly see that the graph proves the opposite. The graph shows the unemployment rate between the years 1926 to 1947.



In ’26 it was a spectacular 2.5% but then it starts to inch up as the economy slows. By ’28 it is up to over 5%. By the time Roosevelt is inaugurated on March 4, 1933 it has peaked at 35.5%. Roosevelt starts his New Deal and unemployment starts to drop steadily until it gets to just above 20% in 1937, a drop of 15% or a cut in the rate of unemployment of almost 50%. It may not have brought us back to the boom year of ’28 but to minimize this achievement is the height of ignominy.

But despite these successes, Roosevelt was inherently in sympathy with conservative orthodoxy and in the ’37 election ran on a platform of balancing the budget.

Social Security taxes were just beginning to be collected; veterans' bonus payments ended. The Federal Reserve Board raised reserve requirements and supported the Department of the Treasury's advocacy of a cutback in federal expenditures to help achieve a balanced budget for 1938.

These policies choked the frail recovery and by August the economy was showing signs of recession. See here.

In fact this departure by Roosevelt of Keynesian economics caused an exasperated John Maynard Keynes to write the president, urging him to abandon his platform of balancing the budget and raising taxes. See here. In other words to the extent that Roosevelt had a setback in 1937 it was not due to following stimulative policies but rather abandoning them too soon.

All indications are that Obama has learned that lesson and will not make the horrendous mistakes of Hoover, nor the smaller ones of Roosevelt.

But as for Roosevelt having failed, a look at other statistics shows how far Roosevelt had succeed even before the advent of the War. For example let us look at the figures for six major indices.

Table 1: Statistics
1929, 1931, 1933, 1937, 1938, 1940

Real Gross National Product (GNP)
101.4 84.3 68.3 103.9 96.7 113.0

Consumer Price Index
122.5 108.7 92.4 102.7 99.4 100.2

Index of Industrial Production
109 75 69 112 89 126

Money Supply M2 ($ billions)
46.6 42.7 32.2 45.7 49.3 55.2

Exports ($ billions)
5.24 2.42 1.67 3.35 3.18 4.02

Unemployment (% of civilian work force)
3.1 16.1 25.2 13.8 16.5 13.9


For the Gross National Product we see that it was a whopping 101.4 in ’29. By the time Roosevelt came into office it had dropped to 68.3. Stimulative policies brought this above the ’29 rate, to 103.9 in ’37 but because Roosevelt temporarily deviated from sound Keynesian principles and tried prematurely to balance the budget it dropped to 96.7 in ’38, but upon a reversal of those policies reached a new high before the war of 113, higher then the record high of ’29.

We see a similar pattern for the other indices. Enormous improvement, a slight set back in ‘37, and again significant improvement by 1940. See the Right Wing website, Conservapivia.

Or let us look at still another graph showing unemployment and real GDP. The enormous success of Roosevelt’s policies is apparent, with a slight and temporary setback in 1937.



How anyone can claim failure for the New Deal given these incontrovertible statistics has to be a mystery to all who like to draw their conclusions from facts and not from immutable Ideology. If Roosevelt faltered it was not because he did too much too long, but because he didn’t do enough long enough. But the legacy that Roosevelt left us with, includes among others Federal Deposit Insurance Corporation, Unemployment Insurance and the many other programs, which even the denizens of the Right admit are brakes on the collapse of the economy. They are a testament to the success of the New Deal, no matter how convenient it may be for them to try to trash it.

As for World War II finally getting us back to full prosperity, I am waiting to hear from the opponents of stimulative spending as to how they think the war got the economy rolling. It took vast government spending on useless armaments (in the sense of having long range economic benefits-it goes without saying that they were essential to winning the war) that were destroyed on the battlefield, to sufficiently stimulate the economy into the post war booms.

The Estate Tax

The Estate Tax, like the Graduated Income Tax and the Capital Gains Tax, has been under attack for many years by “conservative groups.” I always have difficulty with the media’s use of this appellation for it is inherently misleading. A “Conservative,” as the term implies, wishes to conserve. He/she opposes innovation, or at least is cautious about it, but reveres that which is established. But as I have shown when they attack the Graduated Income Tax or the Capital Gains Tax, they attack systems that have been with us for a century and a half. That is not conservative! That is as radical as one can get.

This history applies equally to the Estate Tax if not more so. It was as early as 1797 not long after the constitution was ratified, that Congress imposed a “legacy tax.” It was repealed in 1802. In 1862 Congress enacted an inheritance tax and repealed it in 1870. In 1898 an inheritance tax was again passed and repealed in 1902. In each of these cases the sole purpose of the tax was to raise revenue, usually to finance wars, which is why they were repealed when the funds were no longer needed. But until 1916, the US, unlike European and South American countries, did not have a landed aristocracy or an inherited concentration of wealth. In 1916 money was needed to finance World War I but there was also a concern with the increasing concentration of wealth, or as the House Ways and Means Committee put it the tax was needed to deal, “in part (with) concentrations of inherited wealth.”

Nevertheless, Theodore Roosevelt, a Republican, who McCain lauded as the President he most admires, said as early as 1907, "A heavy progressive tax upon a very large fortune is in no way such a tax upon thrift or industry as a like tax would be on a small fortune. No advantage comes either to the country as a whole or to the individuals inheriting the money by permitting the transmission in their entirety of the enormous fortunes which would be affected by such a tax; and as an incident to its function of revenue raising, such a tax would help to preserve a measurable equality of opportunity for the people of the generations growing to manhood."

In 1935 Franklin Roosevelt proposed to Congress that they pass both an estate and an inheritance tax but only the estate tax passed the Congress and it went unchallenged until the year 2000. Even during the Reagan years the tax went unchallenged. But in 2000 a major drive to repeal both the Estate tax and the Gift tax was undertaken. It was backed by the wealthiest in our society, who using that wealth mounted a campaign full of misleading and outright false claims. One of the things I personally remember were radio ads that purported to be from financial advisors warning people that unless they sought estate planning they risked having their estate confiscated. Secondly, other groups mounted a campaign that family farms and small businesses were being endangered and that many would have to sell their farms/businesses in order to pay the taxes. The campaign was so effective that when HR 8 the Death Tax Elimination Act Came up for a vote in the House it passed by a vote of 279 to 136 without a dissenting Republican vote and 65 Democrats voting for it. The bill did not pass because President Clinton vetoed it and there were not enough votes to override his veto. The Office of Management and Budget in warning Congress that President Clinton would veto the bill, said in part, “The Administration strongly opposes H.R. 8, which would repeal the estate and gift taxes. Repeal of these taxes would be fiscally unwise, would reduce the overall fairness and progressivity of the tax system, and would harm charitable giving. The President would veto this legislation repealing the estate and gift taxes if it were presented to him.

“The Administration believes that such a tax reduction would harm the important priorities of maintaining fiscal discipline, paying down the national debt, extending the solvency of Medicare and Social Security, and maintaining core government functions such as education and fighting crime. The Administration estimates that this legislation, when fully phased in, would cost close to $50 billion annually, far more than the stated costs of the bill, because most of the cost is delayed to beyond the first five years.

“While the Administration supports appropriately targeted estate tax relief for small business and family farms, a tiny fraction of the tax relief provided under this measure accrues to these important sectors of the Nation's economy. Only the wealthiest two percent of all estates pay any estate tax at all. The estate tax promotes the integrity and fairness of the overall tax system by acting as a backstop to the income tax, ensuring that even income on which income tax is deferred or avoided is ultimately subject to at least some tax. In addition, recent studies suggest that repeal of the estate tax could reduce charitable gifts and bequests by close to $6 billion annually.

“The Administration worked with the Congress in 1997 to lift the burden of the estate tax on the vast majority of small businesses and family farms. The Taxpayer Relief Act of 1997 raised the effective deduction for qualified family-owned business interests to $1.3 million ($2.6 million for a couple), which exempts almost all family farms and small businesses from the estate tax. Current law also allows small businesses and farms to exclude part of the value of real property used in their operations. Those few businesses and farms that are subject to this tax can pay it in installments over 14 years at below-market interest rates.”

I quote this at length because it sums up the case against repeal so well that I feel I cannot possibly improve upon it.

I want to specifically discuss some of the arguments made for repeal and rebut them, but that will have to wait for my next exposition. Let me close here by quoting Louis Brandeis, a highly distinguished Justice of the Supreme Court who served from 1916 to 1939 and who said "We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both."

In my opinion this should be self-evident, particularly at a time when we see both the power and abuse of great wealth.

The Supreme Court - Consequences As New Appointees Shift Its Balance

Different Approaches to Constitutional Interpretation and Their Consequences

The Changing Court
          
The debate about the nomination of Harriet Miers, who is now the nominee to replace Justice O’Connor, which follows on the heels of Justice Roberts assuming the post of Chief justice is in the forefront of political discourse; as well it should be, because much is at stake. More than one could tell either from the media or from the interest groups on either side of the debate. Nor can one tell from the debate that there are legal issues involved and not just policy issues. 

That is not to say that a judge’s political philosophy and even more important his/her approach to judicial interpretation are not relevant. They are! The difference between a judge who believes in a “living constitution” on the one hand, and one who believes in “original intent” or “strict constructionist” or “an activist judge” on the other, are enormous, but their meaning is often lost in political posturing both by the left and the right, though in my view much more so by the right.

Justice Stevens, one of the “liberal” members of the court, in an address before a Bar association explained the difference between interpreting the law and making policy. In referring to some conclusions he had reached, he explained that he believed that as a matter of policy that the outcomes were:

   "unwise…. (but) I was convinced that the law compelled a result that I would have opposed if I were a legislator….”

In the controversial eminent domain case that allowed the "taking" of private homes for a commercial development in New London, Conn., he said that his decision was:

   "entirely divorced from my judgment concerning the wisdom of the program.”

         The constitution, in his view gave no basis for finding the conduct of the municipality to be unconstitutional.
  
         Similarly, Justice O’Connor, while dissenting from an opinion of the court that declared the execution of anyone before the age of 18, said:

  “Were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18”.

Thus if we, and I don’t mean just lawyers, are to join the debate intelligently and not just in sound bites, we must start by reading the relevant portions of the constitution. For example, “A Women’s Right To Choose” may be good policy, but as a matter of Constitutional Law that is not enough. For it to have a constitutional basis we must find its foundation in the Constitution.

       But to say that Judges do not necessarily vote for their preferred policy choices and do try to follow the law or the Constitution when handing down decisions is not to say that a judge’s judicial philosophy is not of paramount importance. But before I get into the proper interpretation of judicial philosophy let me begin by more fully exploring what is at stake.

What is at Stake

To listen to the debate one would think that the only thing that is at stake is the Right to an Abortion. As important as that issue is, there is far more at stake. To understand this we must begin by that analysis which lies at the heart of Constitutional interpretation. For example, in discussing Roe vs. Wade one must understand on what provision of the Constitution this decision was based on, and as it may seem, there are few articles in the media which discuss this, or even deem it to be relevant, although it is at the heart of the matter. (For those who wish to read the decision in full it can be found here.)  
 
         While the court in Roe vs. Wade refers to other sections of the Constitution it’s primary reliance is on the 9th amendment, which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Whether we are deemed to be Strict Constructionists, Originalists, Activists, Liberals or Conservatives, we must still look at the relevant language of the Constitution and if it is not clear we can look at its history. There is virtually no debate among lawyers and judges as to this being the correct way of interpreting any legal document.

        With this in mind we look at the language. It is vague! But it is easier to understand if we look at its historic context. When the founders drafted the constitution it did not contain a Bill of Rights. Many opposed its approval on this ground, but others said an enumeration of rights might have the opposite effect of what was intended because it would be impossible to list all the rights that the people have. For that reason the 9th amendment was added to make it clear that the previous eight were not intended to be all-inclusive. At the same time it left open a plethora of uncertainty as to what other rights are to be implied. If none are to be implied then the amendment becomes a nullity. If any are to be implied, they must be found without specific mention in the constitution.

 This is where the “Right to Privacy” comes into play and it was not first propounded in Roe vs. Wade. It was first mentioned as long ago as 1891 in Union Pacific R. Co. v. Botsford, 141 U.S. 250 at page 251. Its most important reference to the concept, however, was in Griswold v. Connecticut decided in 1965, and the issue was not whether a woman has a right to an abortion, but whether a law forbidding contraception stood constitutional muster. This was where the concept of privacy as being protected was enunciated most clearly and it formed the basis of that decision.

 In 1981, Roberts referred to the "so-called right to privacy…." If he believes, as this might indicate, that there is no such right, and if he is not willing to defer to a precedent that has been reaffirmed by numerous decisions of the court over a period of forty years, (Stare decisis) then not only is the right to an abortion no longer protected, but neither is the right to practice contraception. Many other cases, including a recent one (Lawrence vs. Texas 539 U.S. 558 (2003), which relied more on the equal protection clause of the 14th amendment than on the 9th amendment striking down a Texas law that criminalized homosexual conduct, would be reversed.

Roe v. Wade

While I have said that much more is at stake than the right to abortion, so much controversy has been engendered by this case that a greater understanding than is now generally available appears to be in order. Most people, for instance believe that Roe vs. Wade made all laws that restrict abortion unconstitutional. That is a serious misunderstanding of the holding of the case. The court in its finding said:
          
“With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of  meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting 
fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”
           
The court then went on to a more specific guide, as follows:

  (a) For the stage prior to approximately the end of the first trimester, thr abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
  (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
     (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
           
The provision of (c), as could be expected, became a bone of contention in a later case where the court upheld a Texas requirement for tests to determine the viability of a fetus where in the doctor’s judgment the fetus was twenty or more weeks of gestational age. While this seems to have been a minor narrowing of the Roe holding, it was considered by many to presage a constant narrowing of the freedom given by Roe.
           
It is to be noted that the only time that the court allows so called abortion on demand is during the first trisemester. However, opponents argue that even (c) is in effect abortion on demand because they claim a doctor can always be found who will certify a danger to the health of the mother, even if that is only that her mental health will be endangered. More radical elements argue that even the life of the mother is irrelevant because we are simply exchanging one life for another, and they hold to the view of some religious groups, including the Catholic Church that life begins at conception. Most of these same groups also believe that contraception is a sin, which should be proscribed, though they mute this view, recognizing that its promulgation would hurt their abortion fight.
          
Looking at the court, as it is presently constituted, the addition of Roberts in place of Chief Justice Rehnquist is not likely to lead to an overthrow of Roe vs. Wade since Rehnquist was always opposed to the outcome in Roe. The only Justices now on the court who are committed to overturning the decision in Roe v. Wade are Justices Thomas and Scalia. Thus the replacement of Rehnquist by Roberts would still leave the present line-up intact. The replacement of Justice O’Connor, however, leaves an uncertain landscape because Justice Kennedy is considered to still be on the fence. Thus if O’Connor is replaced by an anti-choice stalwart, and it is not clear where Miers stands, we would have a 4 to 4 line-up with Justice Kennedy becoming the potential swing vote. On the more peripheral issues, however, which bear on how difficult it would be to have access to an abortion, where Justice O’Connor was frequently the swing vote, it is likely that the court would take a more restrictive view of abortion, even if it does not actually over rule Roe.
           
However, if Justice Stevens, who is now 85 years old, were to retire we would have a whole new court, which could, and probably would, eliminate the concept of privacy from the constitution and thereby reverse not only Roe vs. Wade, and the right to abortion, but Griswold and the right to contraception, and would reinstate laws criminalizing homo-sexual conduct. If these results seem frightening, they could very well be but the tip of the iceberg.

UNDERSTANDING “STRICT CONSTRUCTIONISM”

It is well to begin our discussion with “strict constructionism” because this was an issue that was debated at the dawn of our Constitution. It turned on the creation of the Bank of the United States, which was the brainchild of Alexander Hamilton. Its introduction in the Congress aroused a storm of controversy not only about its wisdom but more fundamentally about its constitutionality. One of its vocal opponents cried:
           
“This bank is unconstitutional! We have no power to grant a charter to any private corporation!” He went on to point out, “ that a power to grant charters of incorporation had been proposed in the General Convention and rejected.”
           
Hamilton’s supporters countered by invoking the doctrine of “implied powers.” They argued:

“If Congress may not make laws conformable to the powers plainly  implied though not expressed in the frame of Government, it is rather late in the day to adopt it as a principle of conduct. A great part of our two years labor is lost to the public… for we have scarcely made a law in which we have not exercised our discretion with regard to the true intent of the Constitution.”   
           
After Congress passed the bill by a vote of 39 to 20 Washington, who believed that the issue of Constitutionality was a Presidential responsibility, considered vetoing the bill on that ground. To help him reach a conclusion he asked for an opinion from his Attorney General, Edmund Randolph, who viewed it as unconstitutional. Still troubled he asked for opinions from Jefferson and Hamilton. Hamilton carried the day, arguing,

 “That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power…”
           
Washington was convinced and signed the bill into law.
           
Subsequently, after the Supreme Court established its power to interpret the Constitution in the seminal case of Marbury vs. Madison in 1803, assuming a power that was not specifically granted in the Constitution, but which the court argued was implied and it upheld the formation of the bank in McCullough vs. Maryland in 1819.
           
Since then the number of times that various branches of government have departed from the strict language of the constitution are legion, but the debate has never entirely ended. However, it is difficult to imagine how the United States would have survived if “strict constructionism” had consistently been followed. It has during the course of history been invoked by whichever side believes that its political agenda is best served by this doctrine or alternatively is served by an interpretation of the constitution which interprets the language of this document in the light of conditions as they exist today. Under a strict interpretation, the power to criminalize the sale and possession of heroin, regulation of child labor, and of wages (the minimum wage and overtime pay) as well as Social Security, Medicare and Medicaid, to mention a few, would be in serious doubt.

UNDERSTANDING “ORIGINAL INTENT”

Original Intent is an even more difficult term to define and apply because it was not debated during the formative period of our Republic. It has, however, become an argument that runs parallel to Strict Constructionism. It’s basic tenet is that in interpreting the Constitution we may not take into account changing conditions in interpreting the Constitution but must be bound by the meaning as it was understood by its framers. The difficulty with this is that the constitution was deliberately left vague so as to satisfy various factions, each of whom would have had a different interpretation of the meaning of the language. In addition, as we have seen, Hamilton, one of the framers of the constitution, and the principal author along with Madison, of the Federalist papers, which was the main instrument in convincing the colonies the adopt the constitution, had an expansionist view of its language.
           
Furthermore, the constitution now has been amended 27 times. Can we look to the intent of the constitution as it was written or must we look to the intent of the amendments? For instance the fourteenth amendment 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.” At the time it was enacted it was intended to protect the newly emancipated slaves, but it has since then been interpreted to make all ten amendments that constitute the Bill of Rights apply to the States. Original Intent? Probably not, but it does seem to fit into the category of Strict Interpretation, which makes it into an interesting paradox since the term Strict Interpretation and Original Intent are generally used by its proponents as though they were interchangeable. More problematic are the decisions regarding corporations, which in a series of cases beginning as early as 1866 found that corporations were persons within the meaning of the 14th amendment. I do not believe that this conclusion can be justified by any language found anywhere in the constitution. Certainly, the original intent of the 14th amendment was not to protect corporations, nor is there any language anywhere in the constitution that deals with this question. Nevertheless, the court reasoned that a corporation is nothing more than a collection of individuals and therefore has all the rights and immunities of individual persons. Of course corporations are not just a collection of individuals, as are partnerships. They have qualities that individuals do not possess, such as the protection from creditors of individual shareholders; they are also taxed differently from individuals and have economic power that could never be matched by individuals. But does this reasoning fit into either the doctrine of “original intent” or of “strict interpretation”? Yet proponents of those doctrines are not likely to strike them down.
           
Proponents of this doctrine, who generally want to overturn Roe vs. Wade and most likely Griswold, et al are also conscious that they must justify overturning a precedent of half a century duration. They have come up with the argument that the Dredd Scott decision, (Scott vs. Sanford 1857) is a perfect example of a decision that is so bad that no one could question the desirability of a reversal (They equate it with the decision in Roe vs. Wade which most can agree is a stretch) and they imply that it was, in fact reversed in due course. Its result was without question an affront to all anti-slavery forces, and even to those who sought compromise, but it was not reversed. It was overturned after the Civil War by the 14th amendment.
          
More important, however, is that under the doctrine of original intent, it was most likely a correct decision. When the Constitution was written both slavery and involuntary servitude were accepted not only in the southern states, but in many northern states as well. While the constitution never uses the word slavery or servitude, its reference to “free persons and 3/5th of all other persons” is clearly a reference to the existence of slaves whose number are to be used for apportionment purposes. Furthermore, even those who abhorred slavery, did not at the time the Constitution was drafted and adopted, envisioned someone of African descent as a citizen, or of having rights such as those held by whites. While by the time of the Dredd Scott decision opinion had changed, particularly in the North, and if the court had taken cognizance of this change in popular opinion, the decision might well have been drastically different. Under the doctrine of “Original Intent,” however, the decision was probably correct. Proponents of “Original Intent,” of course, cannot admit this or their approach would be rejected by the vast majority of Americans. Both “Original Intent” and “Strict Interpretation” if applied consistently would destroy our whole edifice of juridical history and put the U.S. into the 19th and to some extent into the 18th century.

Without the concept of a Living Constitution, and the concept of “evolving standards of decency” which the Supreme Court has relied on, we might still allow corporal punishment, such as branding and whipping.

Understanding the Meaning of Activist Judges

As far as I know no one has ever tried to define this word. It has generally been used as a word of deprecation to define those judges who believe in a living constitution or who interpret the Constitution in the light of existing conditions or create new rights for the American people, such as the right to contraception. Though, as has been shown in relationship to declaring corporations to be persons, albeit artificial ones, judges who normally hold to a so-called strict interpretation are quite capable of deviating from this standard when there values require it.
           
It seems much more logical, however, to define activist as a judge who does not hesitate to strike down Acts of Congress. Using this standard, we find that it applies more frequently to judges who are considered to be “conservative” rather than to those deemed “liberal.” Using this standard we find the opposite of what most people might assume. It turns out that by this standard Justice Thomas is the most activist judge and Justice Breyer, a judge generally grouped among the liberal four is the least activist. In fact it appears that the Justices presently on the court have during the years that they have been together on the court i.e. 1994, have struck down Acts of Congress as being unconstitutional in the percentages shown below:

Thomas 65.63 %

Kennedy 64.06 %

Scalia 56.25 %

Rehnquist 46.88 %

O’Connor 46.77 %

Souter 42.19 %

Stevens 39.34 %

Ginsburg 39.06 %

Breyer 28.13 %

It is evident from this that there is a correlation between being liberal and deferring to our elected representatives, which is the opposite to what we have been led to believe by a barrage of disaffected right wing zealots, who denounce the court whenever it does not rule in accordance with its dictates.

Understanding the Meaning of a Liberal Judge

For most of the decade between the advent of the New Deal of Franklin D. Roosevelt until the rise of the new Right with the election of Ronald Reagan, liberal was a term that was associated with the programs known as the New Deal, which was generally popular and the term was probably embraced by most, who supported the tenants of that program. The term has now fallen out of favor to a large extent because it has been denigrated by those who generally would like to see these social programs dismantled. It most likely also lost its glitter because of its association with many of the excesses of the ’60s. Republican and right wing activists invariably use it as a pejorative term.
           
Franklin’s Merriam Webster’s electronic dictionary defines liberal as “generous,” “not narrow in opinion or judgment” “tolerant.”

The Encarta Word English dictionary uses these definitions:

1. tolerant of different views and standards of behavior in others
2. favoring gradual reform, especially political reforms that extend democracy, distribute wealth more evenly, and protect the personal freedom of the individual
3. generous with money, time, or some other asset
5. not limited to the literal meaning in translation or interpretation
6. concerned with general cultural matters and broadening of the mind rather than professional or technical study
7. relating to a political ideology of liberalism
8.  somebody who favors tolerance or reform

Given these accepted meanings it is hard to understand why the term has fallen out of favor. In political terms, I believe that the definitions of Encarta in 1 and 2 probably best describe its philosophy.

In terms of the Justices of the court, Justices Souter, Stevens, Ginsburg and Breyer are generally described as liberal. They appear to fit not only definition 1 and 2, but as a matter of constitutional interpretation fit the definition of (5), for which they are often criticized, but they would maintain that given the nature of the Constitution, this has not only been a desirable means of interpretation since the early days of the Republic, but has been an absolutely necessary one. They are often accused of making law rather than interpreting it, but as we have seen, other methods of interpretation have not historically been possible. Conservatives have as often placed their own worldview on the Constitution as liberals, e.g. finding corporations to be persons, or enunciating doctrines, as exemplified in the Dredd Scott decision.

Understanding the Meaning of a Comservative Judge

For most of the period since the New Deal and even long before, a conservative was generally considered as one who was pro-business. Conservativism in this sense was deeply ingrained in the Republican Party. For Instance, Calvin Coolidge, The Republican President in the 20s famously said, “The business of America is business." (January 17, 1925) And Dwight Eisenhower’ Secretary of Defense, Charlie Wilson, said, “What is good for General Motors is good for America.” This however is not the dictionary definition of a conservative.

 Franklin’s Merriam Webster’s electronic dictionary defines the term as, ”disposed to maintain existing views, conditions, or institutions” and “moderate, cautious.”
           
 The Encarta Word English dictionary uses these definitions:
           
“in favor of preserving the status quo and traditional values and
customs, and against abrupt change”
          
“somebody who is reluctant to consider new ideas or accept change”

 This is quite different from being pro-business but it nevertheless defined the Republican Party to a large extent during the period from the advent of the New Deal through the inauguration of Ronald Reagan. Republicans and conservatives on the Supreme Court strongly objected to the social and economic innovations of the New Deal (Roosevelt), The Fair Deal (Truman) and the Great Society (Johnson) and on the Court to the innovations the Warren Court, but they urged caution and tried to stop these innovations from coming into force. But they were true conservatives for the most part. Once a new innovation was enacted they accepted it. They weren’t anxious to undo that which had come to be accepted by the American people and the legal profession. Thus, the precedence of Griswold decided in 1965 and its finding of a right of privacy in the Constitution has never been under serious attack for the 40 years since it was first promulgated, though in recent years there has been an increasing minority in favor of “modifying” which probably means eviscerating, rather than outright overruling Roe vs. Wade.
           
But the new breed of Republican hardly fits the definition of a conservative whether on the court or off. Off the court whether one considers the invasion of Iraq wise or not, it most certainly cannot be described as “moderate, (or) cautious”. Nor can the drastic innovation of huge deficits and huge tax cuts be considered “moderate, (or) cautious” and given the long history of the Republican Party in favor of balanced budgets can this be considered a policy, “in favor of preserving the status quo and traditional values and customs, and against abrupt change”. Nor can the innovations proposed to privatize at least a portion of Social Security be considered to be, “in favor of preserving the status quo and traditional values and customs, and against abrupt change.”
           
On the court the three “conservative” Justices, have made it clear in their dissents that they are prepared to overturn many precedents with particular emphasis on the right of privacy but also in many of the areas of criminal law. Thus the term radicals would more aptly fit their philosophy, but in an America which by and large is conservative, in the true sense, that is not a label that anyone would willingly accept.
           
Many believe that a conservative is one who is reluctant to overturn precedent or to invalidate acts of an elected legislature, whether state or federal, but while that certainly is what we would expect from a “true” conservative, the present factions who call themselves, “conservatives” certainly don’t fit that description.

Other Areas That Could and Would be Changed

Since the present minority on the court, (which could become a majority with the investiture of Justice Roberts and the replacement of O’Connor with Miers and would certainly become a majority with the appointment of one more Justices) appears to be hostile to the decisions of the court during the period beginning with the first appointment to the court by Franklin D. Roosevelt, we can best begin to get a picture of the landscape we could be returning to, by looking at the cases that were decided during the preceding period, as well as by looking at the cases that were decided thereafter.

 In 1905 the Supreme Court Declared unconstitutional a New York Act limiting the working hours of bakers, holding that such a law was an abridgment of the employers due process rights under the 14th Amendment. The court reasoned that even though states have the power to regulate the areas of health, safety, morals, and public welfare, the New York law in question was not within the limits of these “police powers” of the State. (Lochner v. New York, 198 U.S. 45 1905) [This decision was the beginning of a series of decisions that relied on the concept of “substantive due process in which the Court struck down a number of state laws that interfered with an individual’s economic and property rights. Even though this decision was overruled in 1917 in Bunting vs. Oregon 243 U.S. 426 (1917), it is not inconceivable that a court consisting of clones of Scalia and Thomas would return to the doctrine set forth in the Lochner case.
           
Even though the Bunting case might have suggested that the court had changed direction it soon became apparent that this was not the case when in 1918 The Supreme Court struck down a federal statute forbidding child labor (Hammer v. Dagenhart 247 U.S. 251 (1918)) and in 1923 the Court declared unconstitutional a minimum wage law for women on the grounds that it denied women freedom of contract. (Adkins v. Children’s Hospital 261 U.S. 525 (1923)
           
In 1936 the court struck down the National Industrial Recovery Act on the ground that it constituted an unconstitutional delegation of powers to the President. (Schechter Poultry Corp. v. United States 295 U.S. 495 (1935)) Such delegation of powers are now common in our complex economy and the President through various agencies is authorized to issue regulations that have the force of law and does so under the environmental, Food and Drug, and various labor and civil rights laws. Were we to have a President whose policies and priorities conflicted with those of the court, a return to the doctrine of this case is entirely feasible.
          
On the other hand the more recent cases that might be overturned, in addition to the cases based on the concept of privacy previously discussed, might be Gideon v. Wainwright 372 U.S. 335 (1963),  which extended to the defendant the right of counsel in all state and federal criminal trials regardless of their ability to pay or Escobedo v. Illinois 378 U.S. 478 (1964), which ruled that a defendant must be allowed access to a lawyer before being questioned by police, or Miranda v. Arizona 384 U.S. 436 (1966)  where the court ruled that those subjected to in-custody interrogation be advised of their constitutional right to an attorney and their right to remain silent.
           
Even more important are cases such as Mapp vs. Ohio 367 U.S. 643 (1961), which ruled that evidence obtained through an illegal search and seizure cannot be used in evidence. This is a case that has often been criticized as creating situations allowing some guilty defendants to escape justice. Without it, however, the 4th amendment (extended to the states by the 14th amendment) prohibition against ”unreasonable searches and seizures” becomes a nullity, for there is no other deterrent against a violation of this fundamental protection for all Americans. As it is, and even without a slew of new justices, it has already been narrowed to allow evidence to be introduced from illegal searches in certain cases, e.g. if the search though illegal, was made in good faith (US. v. Herring, 06-10795, 11th Circ 2007).
           
Other endangered cases that protect Americans against abuse by government power but which “conservatives have denounced as giving too many rights to the accused are Fay vs. Noia (372 US 391 1963), which holds that anyone held in custody in violation of the constitution is entitled to a writ of Habeas Corpus, In re Gault 387 U.S. 1 (1967), which held that juveniles are entitled to most of the procedural rights of adults and Jackson vs. Deno 378 US 368 (1964), which introduced procedures to prevent involuntary confessions at trial.
           
The area where a new court would most likely do the most extensive damage to our existing statutory scheme is where federal laws regulating the environment, conditions of labor, the regulation of guns, violence against women, and even Civil Rights legislation. This development has already been presaged by 5 to 4 decisions of the present court. For instance, in U.S. vs. Lopez 514 U.S. 549 (1995), the court struck down a law outlawing the possession of guns near schools in most cases. In U.S. v. Morrison 529 U.S. 598 (2000), the same 5-4 majority overturned a provision of the Violence Against Women Act empowering rape victims to file damage suits in federal court.
           
It should be kept in mind that when the Supreme Court upheld the constitutionality of the 1964 Civil Rights Act's ban on discrimination in public accommodations, it accepted the government's argument that the law was a proper exercise of Congress' power over interstate commence. The relevant case was Heart of Atlanta Motel v. United States 379 U.S. 241 (1964), decided only a few months after passage of the Civil Rights Act. In that case the court upheld the application of the Civil Rights Act to an Atlanta motel that had refused to allow African-Americans to stay there. In doing so, the court noted that 75 percent of the Heart of Atlanta Motel's guests came from out of state, and that it was located near two interstate highways. If the court were to take a restrictive view of the commerce clause, which as I have indicated is a direction the present court has already undertaken, even laws banning discrimination in public accommodations would be endangered.

The Death of Justice Renquist

   Many believe that the death of Justice Rehnquist and his replacement by someone holding the views of Justices Scalia or Thomas will not have a profound effect on the direction of the court. If we put the focus on “profound” this is undoubtedly true. However, even Rehnquist’s replacement could shift the court rightward, for a careful review of recent cases will show that even Rehnquist was less of an ideologue than Scalia or Thomas, and broke with those Justices on a number of important votes. For instance during the Supreme Court term that ended in June of 2003, Rehnquist voted with the majority in at least four cases in which Scalia and Thomas dissented. A replacement of Rehnquist by a clone of these Justices would, at least marginally, move the court further to the Right. At this point it is impossible to predict whether Roberts, or for that matter Miers, would be a clone of these sitting justices.

Conclusion

As important as the “Right to Choose’ is, it is a major mistake to put all the emphasis on this right in the context of the make-up of the Supreme Court. There are many other values, that are seriously endangered if the court were to be packed with Justices who analyze the Constitution in the way that Scalia and Thomas do, and one should never forget that President Bush has said that he wants justices in their image. Unless Democrats make major inroads in the Senate during the election of 2006 the future looks bleak indeed.