Law Enforcement, Race and the Gun Culture – Part IX and Conclusion

This is the tenth part in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here, Part IV is here, Part V is here, Part VI is here, Part VII is here and Part VIII is here:

In Part VIII, I concluded by setting forth the Review of Gerald Walpin’s book by RUTHEE as it appears on the Amazon website.

I now set forth my response as it also appears on that website:

It has been fourteen months since I wrote my negative review of “The Supreme Court vs. The Constitution”, which sparked a lively debate with the author, though now that I return to the Amazon page for this book, I see that all the reviews but mine, have not only been positive, but have been on the rave side.

I wonder why this is? I suggest that that in our hyper-partisan age, it is unlikely that anyone with a view that would not agree with the premise of the book is unlikely to read it. I am the exception.

RUTHEE, whoever that is, since he/she/it does not care to use her real name, came to the book with an obvious pre-disposition to agree with it, and I must say that there are things in the book, that I too, agree with.

But before I get to that I want to comment on RUTHEE’s review.

Ruthee starts out by complaining that while the Constitution is “America's most important document…few have read it” and then demonstrates an ignorance of the Constitution that clearly shows that RUTHEE hasn’t read it either.

How else can one explain the absurd comment that “the primary function of government…is to render security to its subjects? And any mischief menacing that security demands a remedy commensurate with the evil.”

I hope that isn’t a quote from Walpin’s book for it would not reflect well on Walpin’s knowledge of the Constitution.

First of all it is only in a monarchy or a dictatorship that the relationship of the people to their government is that of “subjects”. In a Democracy the people are citizens, not subjects.

Secondly, where did he get the idea that the primary function of government “is to render security to its subjects”? Certainly not from the Constitution, for the Constitution in its preamble states that:

...in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…

Now if Ruthee, and possibly Walpin, had actually read the Constitution, they would have found that the founders did not consider the primary task of government to be “security to its subjects” but rather to “establish Justice” and it should be noted that the founders even chose to capitalize “Justice”. To do Justice, the founders tell us, is the first function.

Now I find no reason why Walpin (if he in fact wrote what RUTHEE claims he did) or RUTHEE, cannot disagree with the founders; they were not Gods. But to claim that this is what the Constitution provides is either ignorance, or deliberate misrepresentation.

RUTHEE then goes on to select as the most outrageous decision of the Supreme Court, Miranda v. Arizona Supreme Court. Now, I happen to agree that this decision was misplaced in interpreting the 5^th amendment, but wouldn’t it be nice if RUTHEE had bothered to quote the relevant portion of the Constitution in criticizing the courts interpretation of it. Or is the language of the Constitution of no consequence in RUTHEE’s mind, and only the result is what counts. Has RUTHEE really ever read the Constitution?

The relevant portion of the Fifth Amendment reads:

…nor shall (any person) be compelled in any criminal case to be a witness against himself, …

This is a very short and concise statement. It, like most provisions of the Constitution, is subject to different interpretations.

We could, for instance, make a case that it means only that torture may not be used to coerce confessions, or other forms of evidence that might be harmful to the defendant, but that, a refusal to testify may be used by a jury as evidence of guilt.

But on this point the Supreme Court as early as 1893, in Wilson v. U S, 149 U.S. 60 said: “… clearly recognize their constitutional privilege, … their neglect or refusal to testify shall not create any presumption against them.”

Now if there is a constitutional right to be silent, is it such a huge step to insist that a defendant in police custody must be told of this right. Certainly, we can disagree with this conclusion, as at least three judges did, but is it such a clear deviation from the Constitution as to provoke outrage.

Now RUTHEE goes on to say: “Failure to adhere to this (giving the Miranda warning) will result in dismissal of the case even against hardened and dangerous criminals.” But this is patently untrue! Failure to give the Miranda warnings will, under the Supreme Court decision, make the confession inadmissible, not lead to dismissal of the case.

RUTHEE then goes on to quote Justice O’Connor: “The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced…” No, but neither does it proof that they have not been coerced, and when a person’s liberty is at stake, shouldn’t the proof have to be that they were not coerced?

Justice O’Connor is also quoted as saying, ”when the admission is not coerced… (it is) highly probative evidence”. Did Justice O’Connor base this on evidence? Was there a record before the court to support this assertion? Isn’t that what courts, and particular Supreme Court Justices, are supposed to do? Base their opinions on evidence?

So let us look at the evidence! The non-partisan Innocence Project uses DNA evidence to determine a person’s guilt. On this basis they have proven to the satisfaction of American Courts that 324 people were wrongfully convicted, and that in 27% of those cases “False confessions and incriminating statements lead to wrongful convictions”. What does that say about O’Connor’s comment about confessions being “highly probative”, or for that matter about RUTHEE’s or Walpin’s approving quote of O’Connor. See here.

One of the foundations of American jurisprudence, as most lawyers know, is Blackstone’s Commentaries on the Laws of England, published in the 1760s. In it he puts forth the principle: "It is better that ten guilty persons escape than that one innocent suffer". Apparently, Walpin, RUTHEE, and O’Connor have lost sight of this principle, which finds its genesis even in the bible:

“Abraham drew near, and said, "Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? ... What if ten are found there?" He [The Lord] said, "I will not destroy it for the ten's sake." (Genesis 18:23-32)

Aside from the damning statistics of the Innocence project, has RUTHEE paid any attention to the tragic story of the Central Park 5? The newspapers trumpeted the glory of their convictions on the basis of their confessions, supposedly freely given and with the Miranda warnings. But the confessions were false. Clearly, the Miranda warnings don’t go far enough!!! I urge anyone who cares, to read the story in New York Magazine, “Central Park Revisited.” 

There is something wrong with a society that incarcerates more people per capita than any other Democratic state, by far.

I urge the reader to look at this graph.

Sadly, this graph doesn’t tell the whole story. According to Wikipedia’s “List of countries by incarceration rate" the US has the highest incarceration rate of any country in the world except for Seychelles, and North Korea. It, by far, exceeds China, Cuba and Russia.

Yes, maybe we can all agree that the Supreme Court has become too powerful and that rulings that drastically limit or overrule previous decisions, or lower court decisions, may not be made by a bare majority of 5-4.

But allow me to point out that in the Miranda decision the majority five were not all appointed by Presidents of one party. Two, Warren and Brennan, were appointed by Eisenhower, Republican, and among the dissenters one, White was appointed by Kennedy (Democrat). Contrast that with today’s decisions where the Supreme Court Justices break consistently along the lines of whether they were appointed by Republican or Democratic Presidents. In other words the Court has become completely politicized.

Just how politicized can be garnered best by the completely partisan decision of Bush v. Gore. The Justices in the majority were Rehnquist, Kennedy, O'Connor and Scalia, appointed by Reagan, Thomas, appointed by Bush, G. H.W. Republican Presidents appointed all of them.

Dissenting were Souter appointed by Bush, G. H.W, Stevens appointed by Ford, and Breyer and Ginsburg appointed by Clinton. Thus this majority of Justices that came to their posts through Republican Presidents, chose the next President of the US to be, guess what, a Republican.

They did this in a decision that they declared would have no precedential effect and went against all precedents (stare decisis) in substituting its interpretation of Florida laws for that of the highest state court. For an in depth discussion of the decision see Alan Dershowitz's “Supreme Injustice” and other books on the subject.

Ever since we have seen this partisan divide on the court, only worse, and when that divide is consistently 5 to 4 along party lines, we have good reason to put an end to such 5 to 4 decisions, which take the court out of evenhanded justice and into political partisanship.

That this is not good for the nation is something we should be able to agree upon.

And so I once again I ride into the night. For the foreseeable future there will be no new posts, while I devote my time to writing my memoirs.

However, if there should be any:

Comments, questions, or corrections they are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.

Speculators and the Price of Gasoline - Discussion

This is an issue that I had not originally intended to discuss. But since it is one of the favorite hobbyhorses of the Left and since Eric Offner of Manhasset Hills, NY has been raising this issue forcefully, I discussed it in my post of March 29, under the heading "Control of the Weather (Discussion)." Offner has now chosen to pursue this, which prompted me to do a fairly long dissertation on the subject. I now want to share my analysis with my readers.

Offner wrote:

First see the article in Business Week entitled "Why Obama's Crackdown on Oil Speculators Won't Work." 

Then answer these questions:

1.) If a crackdown on oil speculators won’t work, does it not imply that there are oil speculators?

2.) Is it possible that Wall Street oil speculators affect the price of oil?

3.) The bigger question is whether speculation on food, water and other necessities exists and whether such action is ethical?

4.) Is failure to restrict unethical behavior unethical?

My response to his questions is set forth under corresponding numbers:

1.) Yes of course there are. The question should not be whether there are speculators but whether it is ever possible to eliminate them and whether they are bad. The answer is that it is not possible to eliminate them and in many cases not even possible to regulate them. Sometimes they are bad, sometimes good, most often neither.

2.) It is not only possible, it is probable. But that is not necessarily bad. Look at the article you sent me. He argues convincingly that speculators even-out the speed at which prices change. Without them, as happened some years ago the price can quadruple almost over-night and a more gradual rise is better for the economy and consumers.

3.) Yes and Yes. Let me take this down to basics. There is a rumor that sugar, or for that matter water, will be in short supply. Most people, i.e. consumers upon hearing this will head for the markets and hoard it. The result is the price goes up and soon the shelves are empty. A self-fulfilling prophecy. Now let us suppose a larger speculator wants to take advantage of the situation and so he goes out and buys many tons of sugar, puts them in a ware house (or he buys futures) and then taking advantage of the rising prices resells it at a hefty profit. As he and others begin to sell the price goes down. Is he/she now a good speculator? How do you stop this? Do you make it illegal for anyone to buy more than a certain amount? How do you determine the amount? How would this effect a legitimate store or a legitimate wholesaler, who by the nature of their trade must buy large amounts?

The way to stop this is price controls and rationing which brings about a black market, where the price is even higher and even less sugar in the stores. We are now seeing this in Venezuela.

Are there times when rationing and price controls are appropriate? Yes!!! But only in extreme cases, such as war-time, when the evils of the black market are preferred to letting hoarding control, but it is always a close question. Where the hoarding is by a limited group, intent on creating shortages and raising prices, it falls afoul of the anti-trust laws and definitely should be prosecuted.

Is Obama's approach sound? I don't know, but it is good politics. He is doing something!!!

Raising the margin price on commodities speculation seems like a sensible thing to do, but it takes someone more knowledgeable than I to analyze the consequences. The article you sent me seems knowledgeable and objective.

I will say this. When Allan Greenspan talked about the stock market suffering from irrational exuberance, the obvious thing to do, as far as I could see and still believe, was to raise the margin requirement, which was within the power of the Fed, but because of Greenspan's hostility to all regulations this was not done - ditto for so many other things that could have headed off the crash.

But I don't know the commodities market - We apparently have regulations but we need money to enforce them. Everything else is shooting in the dark. Simplistic answers whether from Left or Right rarely have any merit.

The article in Business Week appears to be an intelligent one. It recognizes that regulations are important and need enforcing by the CFTC. Thus it is apparent that we have regulations in place that are not being enforced, or at least not being enforced adequately. But the Republican Congress will never appropriate the money needed. Instead, they will make sure that what can be done is not done, and then blame the President, who can only do so much without Congress' help.

There are many problems with the world's food supply that are exacerbated by US policy.

The use of US ethanol as an additive to gasoline has created a shortage of corn and driven the price higher, but the corn lobby will prevent Congress from changing this.

Our foreign aid program with food is counter-productive. The law requires that we not give money to aid organizations for food aid, but rather buy the food from American farmers at much higher prices than we could buy it on the world market and it must be shipped in US vessels. If the law would allow our aid to be by buying the food from African farmers, we would save money both in the price of the food and in the shipping costs and we would aid the African economy. Now it enriches the American corporate farmers and hurts the African economy because it competes with the African grown food and drives that price down.

4.) No and the question is irrelevant since I have said such action is not unethical. But even where it is unethical there is always a weighing of unintended consequences. Simplistic questions and simplistic answers to complex problems are, well, simplistic.

I then added:

The oil market is a world market. How do you regulate trades made outside the US? If you rationed gasoline in the US, it would have no effect on the price of oil on world markets. If you had price controls on gasoline that were below the world price of oil, no one could afford to sell gasoline, since they would lose money on every gallon. World markets and globalization make a new ball game. But we can no more change it than we could stop the industrial revolution and now the technological revolution that brought about globalization.

Furthermore a high price of gas is not bad. It makes clean energy and conservation much more competitive

Even boycotts have limitations. We put a boycott on Iranian oil. But if China does not join the boycott, can it be effective? The boycott might force the price of Iranian oil to go down, in which case China gets a windfall. How do you stop this? Only with a full fledged blockade of Iran, an act of war, which would put us in conflict with China and get Iran to try to close the Straight of Hormuz. Can you imagine what the price of oil would go up to? Speculators will make a lot of money, but they are not causing the price rise - they are taking advantage of it. Is there anything we can do - yes, but I am not smart enough to know what. Ask Barney Frank - he understands these things better than I do, and while I am talking about Barney Frank I commend to you an interview of him, which appeared in New York Magazine.

Also we do have laws on the books and the Commodities and Exchange Commission, which needs more funding as recommended in the article you sent me to enforce the laws and regulations. But the Republicans will never authorize this. What can we do? Get rid of them to whatever extent we can.

But I get tired of the Left and their "it’s the speculators.”

Finally allow me to add that while normally a two party system benefits the country, now a defeat of the Republican Party to the point where we have only one party has the best hope of reforming the system. Now it is broken and can't be fixed. In our system a one party system would not last long. The Democratic Party would split in two.

Talk of a third party in our system is very counter-productive. It would make sense if we had run-offs as e.g. the French and most of the world do.

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.