The Supreme Court vs. the Constitution

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

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

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

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

My Review

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Walpin’s Rebuttal:

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

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

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

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

My Sur-Rebuttal:

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

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

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

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

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

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

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

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

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

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

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

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

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

But its words don’t, and it doesn’t.

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

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

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

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

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

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

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

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

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

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

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

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

The Election

It has not been so long since I said "Adieu." The response was gratifying as can be seen from my post "Adieu (Comments)" but it did not solve either the problem of the small size of my audience, nor its consumption of an amount of my time that forced neglect of many of my personal duties and interests.

Nevertheless, I am back because I can no longer endure the apathy that seems to be greeting this campaign, and I cringe when I hear of people saying, “Well, I will vote for Obama, but will make no further effort. He has disappointed me.” So allow me to say, nay shout from the rooftops, this election is not about Obama. This election is not about you; this election is not about me.

This election is about the heart and soul of America!!! It is about the survival of the USA as a great power. It is about the future of our children, and our children’s children. It is about the survival of our middle class, which has been the source of the nation’s success, and the envy of the world.

Since the election of Ronald Reagan in 1980 there has been an inexorable decline of the Middle Class in America. There has been a steady redistribution of wealth upward. Slowly but steadily. First we found that families had to have two breadwinners to earn enough to stay in the middle class. We thought that this meant progress because we associated it with the Women’s Movement that allowed women their place in the workplace, and it was a good thing that women could now, for the first time make careers as lawyers, as doctors, and even to a limited extent as CEOs. What we didn’t see was that this had not become a freedom, a choice; it had become a necessity. Without two wage-earners it was no longer possible to stay in the middle class.

It used to be that every generation could look forward to the next generation doing better than the previous one. This is no longer true, except for people like Trump, like the Bushes, like Romney, who begin life with all the advantages of coming from the wealthy aristocracy. It used to be the landed aristocracy – now wealth is held differently, but it is no different.

Our tax code used to be graduated. During the last year of the Republican Administration of Dwight Eisenhower in 1960, there were 24 tax brackets ranging from 20% to 91% on all incomes over $400,000. To be sure $400,000 in today’s dollars is the equivalent of over three million dollars. But it used to be 65% on all incomes over $64,000, the equivalent of half a million in today’s dollars and as I have said 91% on incomes over three million dollars. No wonder the Federal government now cannot pay its bills without huge deficits or by decimating government services. But they tell us that high taxes on the rich (they have renamed them “job creators” - clever) keep the economy from thriving. Really? Was the Eisenhower economy bad? Was the Bush economy good? What about the Clinton economy? Even Reagan had high taxes and after lowering them too much, increased them by the largest amount in history according to the right-wing website The Free Market.

Our tax code now has Romney, with his hundreds of millions, paying a tax rate by his own account of 13%. I, like most middle class families, pay more than that, and if Romney wins we will pay more, he and those similarly situated, will pay substantially less. Where will the money to meet our needs come from?

Are we going to end up with a tax system similar to the one that existed under the French monarchy before the revolution, where nobility (read today - the wealthy) held the highest positions and were exempt from taxes?

This election is not about the deficit.  It is not about the size of government.  It isn’t even about jobs.

This election is not about the deficit.

These are phony issues cooked up by the Republican Tea Party, and promoted by our craven media echo chamber. According to the Tea Party's website the Ryan-proposed budget would balance the budget in 2040 or eighteen years from now. Does that sound like a plan that has real concern with balancing the budget, particularly when it is considered that at the beginning of the last Republican Administration the United States had a projected federal budget surpluses for the indefinite future and with Ryan’s support, put through policies that wiped out the surpluses and substituted deficits as far as the eye can see. Furthermore even the 2040 projection seems phony because to achieve them would require the elimination of tax expenditures, which have not been specified, and which appear to be nothing but pie in the sky, or worse, would further impact the middle class and the poor.

Is it about the size of government?

It is about the role of government The proposals are for increasing the military, doing away with Roe vs. Wade and increasing government intrusion into the bedroom of every married or unmarried couple, and even blocking access to contraception services. It is not likely to reduce abortion, since unwanted pregnancies would increase as contraceptive services decrease, but rather move abortion for desperate women from the offices of reputable physicians to the back alleys of yore.

It would increase surveillance of our citizenry while reducing their constitutional rights in the name of the war on terrorists and would continue the war on drugs, while taking us into what may well be perpetual war, in an effort to protect the profits of our defense industries and by creating a gun culture that feeds the profits of gun makers.

It is not about the size of government. It is about the role of government. It is whether government’s role is to protect us from the avarice and the dishonesty of the unscrupulous who inhabit too much of our banking and business sector, or whether government should become the protectors of these so called job creators, who have no interest in creating jobs, but whose object by definition is to maximize profits. It is whether government is to be the ally of the Gordon Gekkos of the world, or the protectors of their victims. The media has accepted without question that Staples was a job creator. But were they? For every job they created how many small stationery stores, the real small businesses of the USA, went bust. How many of the owners of these businesses were forced into bankruptcy and how many of their employees lost their jobs. How good are Staples' jobs? $8.92, $8.47, $9.35 an hour. See here.

  

It isn’t even about jobs.

It is about jobs in the minds of the public. But there is nothing in the Republican program that on the basis of experience is likely to improve the jobs picture. Just as The Democratic Clinton Administration handed the Republican party a positive economy and a good jobs picture which in eight years they decimated, so it is more than likely that a return to the policies that destroyed jobs and brought us to the edge of depression, would only exacerbate the jobs picture. High unemployment is not exactly something that makes employers unhappy. It puts downward pressure on wages, and cheap labor is something that our rich, re-named job creators, relish.

Their supply-side economics may sound good in textbooks of the Chicago school, but they have proven time and time again as fallacious in the real world. Jobs, as experience has proven, time and time again, are created when demand for goods and services exist. No employer will hire to create goods or services for which there is no demand. No matter how much money is on hand, no matter how low taxes, no employer hires, unless he/she needs those employees. All is circular. When demand falls because of unemployment, or low wages, or because consumers have over extended themselves, employers will reduce employees because they don’t need them. This loss of jobs decreases the ability to make purchases, further decreasing demand, which lead to further layoffs, etc. The reverse is equally true! When money is placed into the hands of consumers, by the only entity that can do so in a declining economy, the government, it increases demand, requiring the production of more goods, which requires the hiring of staff, which increases demand, etc. The only time this fails is when demand outstrips supply, which leads to inflation, not something that is a threat in the foreseeable future.

What is this election about?

This election is truly a class struggle. Republicans tell us by calling it that we are in some way preaching a communist doctrine. But calling something what it is, is never any doctrine. As I have indicated, we have had over thirty years of an inexorable decline of the middle class, which was exacerbated during 8 years of the last Republican Administration. The last time we had a chance to reverse this trend was at the end of the Clinton Administration. Clinton was hampered not only by Republican obstructionism, but by the deficit he inherited from the Reagan/Bush years, (and when we look at the record we find that despite the propaganda, the party of deficits is the Republican party) which made desperately needed expenditures undesirable. With our fiscal situation in order and improving further, the election of Al Gore could have ushered in a period of American constructive growth. At the same time with Republican Supreme Court Justice Sandra Day O’Connor retiring, Gore could have swung the Supreme Court in a more liberal direction. Maybe that is why for the first time in American history the Supreme Court stepped in and decreed George W. Bush the winner.

Bush cemented the Republican majority on the court, which now decreed in the “United case” that money is speech, and that the right to use money to buy elections; to intimidate opponents; and to dominate the political landscape has constitutional protection.

And we had the Bush tax cuts, the war in Iraq, which has removed a counter-weight to Iran and created a Shiite state with a natural affinity to Iran, which together turned the Clinton surpluses into huge deficits and further undermined the middle class.

If Republicans win this election they will secure a majority on the Court that will be unchallengeable for decades, and will embolden the court further.

They will push through further tax cuts that will further empower the rich, who will push through further cuts. The circle works here too. Money leads to power – power to money – money to more power, to more money, etc.

Before the next four years are over, they very likely will have succeeded in making their vision irreversible. Medicare gone, not for us, but certainly for our children and grandchildren. Social Security gone –not for us, but certainly for our children and grandchildren. Continuing rising Health care costs, but the burden moved from society to the individual, and with that good health care only for the rich. Ever greater impoverishment of the poor and near poor as the minimum wage is, at the least, allowed to be decimated over the years by inflation, and quite possibly abolished, and the ladder out of poverty, and upward mobility, already shredded, disappears.

The despoilment of our air and water as the EPA is at least undermined, and very likely abolished.

I could go on and on and some will say I exaggerate. I don’t !!!! Most of what I warn will happen is in the Republican platform. They have said they will do it. Why would one doubt it?

Can Democrats stop all this with the filibuster? Not likely. Once the Tea Party people have control of all branches of government, they will end the filibuster, which they will no longer need and reign supreme.

What will happen to our schools? What made the US great was that we were the first to institute a class free educational system with high school free. In the 21^st century we need state colleges to be tuition free. Instead we already see a trend where private college tuition is skyrocketing and public institutions are not far behind. We need to reverse this. But a Republican victory will exacerbate it. Less and less money for public schools, larger classes and increasingly obsolescent buildings and plants, a trend already under way.

And our public schools will teach Creationism instead of Evolution, the Denial of Global Warming, and all about Adam and Eve. Maybe not in all states, but in quite a few!

All this does not even cover the many other areas that are threatened. Our prisons turned over to private industry so that prisoners can be used as profit centers, something akin to slavery. Increasing attempts to disenfranchise minorities, the poor, and the aged.

What about federal lands that have been owned by the nation since they were acquired. Romney has already proposed they be turned over to the states. And what will many states do? Sell them off so they can cut taxes!

I don’t agree with much of what Ryan says, but I do agree with him on this quote: “We're not just picking the next president for a few years. We are picking the pathway for America for a generation.”

Some will say I am playing Cassandra. I am afraid that I am, because like Cassandra who warned the Trojans of “the destruction of Troy (… about the Trojan Horse the death of Agamemnon, and her own demise), (but) she was unable to do anything to forestall these tragedies since no one believed her.” 

What can we do to stop this tragedy? We can start by taking the threat seriously. We can stop talking about our disappointments with the President, and we can start taking the election as the most important thing in our lives.

That means contributing money till it hurts. It means joining phone banks. It means doing all that is within our power to forestall the tragedy that looms for our country and posterity. And it means distributing this warning to all your friends, acquaintances, and anyone else who will listen.

Yes, it is that serious.

Control of the Weather (Discussion II)

In my last post entitled "Control of the Weather (Discussion)" that was posted and distributed on March 29, I set forth some comments made by Eric Offner Esq. of New Hyde Park, New York. To access those comments double-click on the title of the post above.

At the end of that post I promised that: “Next time I want to tackle a very important and complicated subject, i.e. the role that race plays in American life and politics. It will be entitled: “It’s All About Race.” But since the discussion emanating from the comments contained in that post continued, I want to share them with you.

In response to the comments I made as set forth in that last post, Eric Offner wrote:

Thank you. Please discuss the present Supreme Court hearings. It seems that we will get a 5 to 4 decision, as was the case in the decision that made Bush President. We can throw out the commerce clause, and cite pre new deal case law. By the way I did not realize that the price of gas issue is a left/right issue, but I do not intend to pursue this. Your scholarly articles are very much appreciated.

To which I replied:

I am sorry to say that the Supreme Court hearings on the Health Insurance Reform Act is not a subject I plan to address in forthcoming commentary. There are only so many subjects I can deal with, and as I have indicated, I am anxious to deal with the issue of race in our society and politics.  

I will say, however, that 5/4 against is not a foregone conclusion. Kennedy has been and continues to be the linchpin, so that we do not have a court of 9, but essentially a court of one. Kennedy decides. However, that does not mean a 5/4 if it is upheld. Some commentators have speculated that if Kennedy goes with the liberal 4, Roberts will join the majority for upholding the law, in order to appoint himself as the one who writes the majority opinion. That would make it 6/3 but assure a narrow holding, with concurring opinions.        

As for the Commerce clause - yes it has been under attack for some time. They are pushing for a pre-New Deal interpretation. Only Kennedy can stop it and if Obama loses, the Right wing Court majority will go to 7/3, when Ginsburg retires or dies, and Kennedy will no longer be the swing vote. It will lead to total Right Wing domination.    

As for the price of gas being a Left/Right issue, it is not. Rather it is a partisan issue. There is a difference. When Bush was President and the price of gas reached levels comparable to the price now, Democrats, including Obama, attacked Bush. I don't remember the details but my guess is that Bush was no more responsible than Obama is now.

But then, after listening to the NewsHour on PBS on Friday March 30, I felt further comments were called for. I wrote:

Since saying "that the Supreme Court hearings on the Health Insurance Reform Act is not a subject I plan to address" I have seen additional facts, particularly on the NewsHour on PBS on Friday that made me feel I had to comment. So here goes:              

In listening to the NewsHour on PBS yesterday I saw a clip of Romney on the campaign trail (See here at two minutes into the video) where he says: Obama Care “will directly control almost half the US economy.” There is a tendency to exaggerate on the campaign trail, but this is beyond all reason. The absurdity is evident when we consider the government will not control anything. It will regulate the health insurance industry. Regulate not control (Medicare or a single payer might be considered as controlling but this does not control, it regulates) and the whole Health Care Industry of which insurance is a small part, is 16% of our economy. See here.              

He then goes on to say, “if I am President I will repeal it.” Doesn’t he ever read the Constitution? The President can’t repeal an act passed by Congress. Only Congress can. 

At 55 minutes 22 seconds into the video we get a discussion between Brooks (representing the Right viewpoint and Shields representing the Left, actually they are both rather moderate) and they both are embarrassed to note that some of the justices during the hearing are actually expressing Tea Party talking points.  

It is difficult for me to understand why there is even a question as to the Constitutionality of the Law. It is no different from any other tax levied, i.e. you pay taxes on your income unless you choose to give money to charity, in which case you don’t have to pay a tax on that portion. Social Security taxes don’t benefit you directly and not immediately. They benefit another generation, i.e. those over 67.              

Talking about forcing people to buy broccoli is and was intended to be facetious. But of course Congress can tax people who don’t eat broccoli, if it is shown that there is a reasonable connection between that requirement and the regulation of Commerce, but that can only be decided when that issues is before the court. Even if such a regulation were ridiculous it would not therefore make it unconstitutional. Some of the justices are behaving like clowns.              

If the court, after the Gore case and the United Case goes down the same partisan ideological route it will discredit its legitimacy. Years ago, (at the moment I can’t pinpoint when it changed) one could not tell how a justice would vote by whether a Republican or a Democrat appointed the Justice. Now that is controlling.              

In Roe v. Wade a decision that was 7 to 2 (not 5 to 4) the majority consisted of Harry Blackmun, William J. Brennan, Chief Justice Warren Burger, William O. Douglas, Thurgood Marshall, Lewis Powell and Potter Stewart. (It was not the Warren Court, and by the way Earl Warren was appointed by Eisenhower, a Republican.)

Blackmun was appointed by Nixon (Republican); Brennan by Eisenhower (Republican); Burger by Nixon (Republican); Douglas by Roosevelt (Democrat); Marshall by Johnson (Democrat); Powell by Nixon (Republican); Stewart by Eisenhower (Republican). Of the 7 justices in the majority, 5 were appointed by Republican Presidents. Yet this has now become a partisan issue.              

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.                       

I don't know what the answer is, but we cannot indefinitely allow a partisan body to have the power to overrule an elected legislature. Only a judicial non-partisan body can be allowed to do that.

And Irving Lesnick Esq. of Boca Ratan, Florida picked up on the issue of eliminating speculation in oil and other commodities, writing:

Your comments are interesting, as always. While I generally agree with them, I will mention a disagreement, or at least a query, since you prefer disagreement, with your statement that outlawing speculation would require banning all commodities trading. It seems to me that the situation here is somewhat like that which prevailed in the life insurance business in the 1700s or so in England. There people were buying what we now call term life insurance on the lives of public figures.  Reportedly, it became a bit of a bubble, and both because it was viewed as morally objectionable as gambling but probably more importantly because some of the public figures began worrying that allowing the wrong people to get into a position to profit from their speedy death, their death might become more speedy than it would otherwise be. The response was the imposition, I think by legislation, of a requirement of insurable interest in the purchase of insurance, which limits insurance purchases to situations where the purchaser would suffer a loss from the occurrence of the insured against event. There are non-speculative reasons for buying and selling commodity futures - a manufacturer who wants to be protected against a rise in the cost of raw materials, an airline who wants to be protected against too much of an increase in fuel prices or and farmer who wants to be protected against a fall in the price of his or her future crop. Requiring participants in futures markets to have these kinds of interest would bar speculation, without banning commodity trading. How to structure such a requirement is, of course, another question.

To which I responded:

Your analysis is worthy of one who was an editor of the Yale Law Journal.                 

You are absolutely correct that there is a way to outlaw speculation without banning all commodity trading, and the insurance industry, (your area of expertise) is clearly a perfect example. But that then brings us to the question of whether it is desirable to stop speculation. I would argue that it is not desirable. If you placed the kind of restrictions on the commodities markets as you suggest, the market would shrink to a degree where "legitimate traders" would have a hard time finding buyers when they were ready to liquidate their positions. Furthermore not all commodity traders can be defined in the futures market as your focus suggests. What about commodities like gold and silver? Traders in gold buy the metal to hedge against inflation. How do you limit this? Or do you limit the market to jewelers.

The problem becomes similar to the stock market, where one could argue that only legitimate investments in a start up business should be allowed, but without a secondary market, the primary market collapses. That is also true in commodities. When you get rid of the "speculators" you are getting rid of the secondary market.                 

Please advise if I am missing something.

And then added:

This reminds me of Revolutionary times. Since the Continental Congress had no taxing power and the states were very poor providers of money to fight the war, the Congress issued promissory notes that went unpaid and because it appeared they would never be paid, they became worthless. A secondary market of speculators arose ready to buy the notes at huge discounts, thus giving them some limited value to the relief of the primary holders. Jefferson argued that the notes should not be paid because that would unjustly enrich the speculators. Hamilton in turn argued that what was at stake was the full faith and credit of the US. Washington sided with Hamilton, the speculators were paid, and the Full Faith and Credit of the US was never in doubt thereafter. [Until the Tea Party (to all intents and purposes, the Republican Party) decided to threaten to prevent the US from paying its debts. For the first time since then, the US full faith and Credit has now been put in doubt.]  The bracketed portion is a bit of a digression, but the point is a secondary market, which usually consists of speculators, is vital to a functioning market.

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.

Contraception, Abortion and Komen – Discussion

On February 9, 2012 I posted my commentary "Contraception, Abortion and Komen" and on February 13, 2012 I posted my commentary "Contraception, Abortion and Komen (Continued)." I urge readers to re-read these commentaries before reading the discussion, which follows.

Albert Nekimken of Vienna, Virginia, enthused:

I read your original blog after receiving today's comments on it. Bravo to you for exposing this covert religious effort to demean and endanger women by eviscerating hard-won rights.

Irving Lesnick Esq. of Boca Raton, Florida brought us this insight:

On the subject of when human life begins, there is a statement in the Bible on the subject:  Genesis Chap 2, Verse 7: And the Lord God formed man of the dust of the ground, and breathed life into his nostrils the breath of life; and man became a living soul.” This seems to say that a fetus becomes a human when it starts breathing, which is when it is born alive.

I never understood why this verse is never referred to in the "when does life begin argument."

To which I responded:

Thanks so much for your input. 

It is startling to find that not only does the Bible not support the theory that life begins at conception, but it actually supports the view that life begins when the fetus begins to breath on its own, i.e., when the umbilical cord is cut.

It appears that the fundamentalists not only ignore science, but even the Bible, that they claim to revere.

Finally Professor Robert Malchman of Brooklyn, NY made this contribution:

"I think that even during the time when abortion was always illegal, and even birth control was a violation of law; it was when the fetus is capable of existing outside the womb, i.e. when the umbilical cord is cut." If I recall correctly, there was also a distinction made when the fetus "quickened," that is, could be felt to move. Killing of a quickened fetus had more substantial penalties than pre-quickened abortions. Now, of course, a fetus can live as a baby outside the womb by the third trimester. Roe v. Wade allows states to prohibit abortion in the third trimester and although viability is not the sole basis for the trimester system Roe creates, it has a logic to it. If the fetus can live, one shouldn't have the right at that point to choose an extraction process that kills it. What will be interesting is when science, as is inevitable, can grow a fetus outside a woman, a true "test-tube" baby. At that point, it will be interesting to see if extraction is permitted, but abortion forbidden (i.e., the woman has a right to remove the fetus, but not to terminate it), or if the debate shifts from a woman's right to control her body to the right to choose whether to bring a life into the world. If it becomes the latter, it will also be interesting to see what rights, if any, fathers may acquire -- of course as it stands now in the body-control regime, there are none.

To which I responded:

Thanks for your comment. You raise some interesting questions. I don't think I agree with some of your moral conclusions. I don't agree with the Sup. Ct. holding that viability controls. Even then I wouldn't want to criminalize it. As for a test tube baby, I would assume if it became possible, it would be made illegal. As for the father, that opens up a whole new debate, but I don't believe that under any circumstances, anyone but the person who is carrying the fetus should be allowed to determine how her body is to be used. The fundamental right has to be the women's right to control her own body and all that resides within it.

Additional comments received on or before February 20, 2011 will be distributed with attribution, unless the writer requests that he/she not be identified. 

Philosophical And Life Experiences In The Shaping Of Supreme Court Views

In my last commentqry entitled, “Judges Do More Than ‘Call Balls And Strikes’”  which I posted on my blog July 13, I pointed out the complexity of dealing with vague language in the Constitution and also pointed out that the concept of originalism is nothing but obfuscation, and that in reality no judge follows such a doctrine nor could they do so, without bringing our whole system of government to its knees.

I do not, however want to give the impression that it follows that any of the judges, be they Right or Left, and there is no longer a true center, simply make up the law to suit their own predilections. Thus in my essay, entitled, “The Supreme Court - Consequences As New Appointees Shift Its Balance” which I wrote in October of 2005 and which can be found in full here, I quoted a number of Justices on the subject of deciding cases in ways which as a matter of policy they disapproved of, e.g. Justice Stevens, in referring to some conclusions he had reached, 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…”

But that does not mean that judges are not influenced in reaching their conclusion by their political philosophy and their background.

The Ledbetter case, which involved interpretation of a law passed by Congress rather than the Constitution is a case in point. The law provided that women may not be paid less than men for equal work.

After working for Goodyear for almost 20 years Lilly Ledbetter was by far the lowest-paid employee in her position. She proved that this disparity was due to sex discrimination, and a federal district court in Alabama found Goodyear liable. On appeal, Goodyear countered it hadn't discriminated against Ledbetter—recently. (Emphasis added) Title VII, of the federal law requires suit to be filed within 180 days "after the alleged unlawful employment practice occurred." In essence, Goodyear argued that the discriminatory decision it made about Ledbetter's pay were made long ago and that since pay raises were a percentage of previous pay, the pay discrepancy kept getting larger and larger. But they argued that except for the first deliberate discriminatory act, the later smaller raises were not the result of any gender discrimination, but simply the result of the much earlier act. Ledbetter's low salary might have merely reflected her earlier, discriminatorily low pay, rather than more recent pay increases.

The Supreme Court in a 5 to 4 decision held that the suit was not filed within the required 180 days and dismissed the suit. The decision turned on the interpretation of the meaning of “unlawful employment practice.” The minority of four held that the intent is not controlling-it is the effect of the decision that controls, and since later smaller pay increases had the effect of sex discrimination, the suit was filed in time. Jeffrey Toobin in his book on the Supreme Court, “The Nine” points out at page. 330 that “for years, the court said that if a women sued within 180 days of her last offending paycheck,” she is entitled to recover for the entire period. But now with a change in the courts personnel the view was different. Alito had replaced O’Connor. Fortunately, since this involved an act of Congress, that body was able to amend the law to make its meaning so clear that even the Supreme Court could no longer misunderstand its intent.

Now I don’t suggest that the Right wing justices did not intend to follow the law, but their philosophy, their backgrounds, were not sympathetic to the objective of the law passed by Congress, and so they interpreted it narrowly. The four liberal justices, and the departed O’Connor, showed their sympathy by interpreting it broadly. They all felt that they had the correct interpretation, but they could not and cannot escape their biases, or their background. In the end it is what instructs them.

The same is true in interpreting the Constitution. In interpreting Roe v. Wade the court had set a standard (actually O’Connor had) that a law restricting abortions must not place an undue burden on women. Pennsylvania had passed a law putting various restrictions on the right of a woman to an abortion including one that she must notify her husband before having one. Alito, then on the Court of Appeals, dissented from the majority on the court finding this to be a reasonable burden. When the case reached the Supreme Court in Planned Parenthood v. Casey, O’Connor was livid over Alito’s view. Not only was such a requirement an undue burden under Roe, but it violated the Equal Protection Clause of the Constitution. The fact that she was a woman clearly was not an insignificant factor in her strong reaction. She declared, “Women do not lose their Constitutional protected liberty when they marry.”

If we look at the decisions it becomes obvious that judges who hold a high regard for the protection from unreasonable searches and seizures will find more situations as unreasonable than those who don’t; those who put a high value on free speech will interpret that broadly, while those who hold the right to use ones wealth to influence elections will have a view that reflects this world view. 

It is for that reason that the court functions best when it has on it justices with different backgrounds and philosophies. A woman often will see things differently from a man. Someone who has had to struggle may see things differently from one who was born with a silver spoon in their mouth.
  
For that reason Shell Haas and Gary Schwartz had it wrong when they wrote in the Suburbanite a few weeks ago that ethnicity (and presumable gender) has no place in choosing a justice for the court. Did they or their predecessors in this type of thinking express a concern when during the first 178 years of the court every justice was a white man. We did not have a justice of another color until 1967 and did not have a woman until 1981. No one wants to bar white men from serving on the court, but it is strange that people object at the idea that at this late date we might want to see some with other backgrounds and experiences, such as Justice Marshal, or Justice O’Connor who upon graduating from law school was offered a job as a secretary in a law firm. Even now, until Justice Souter resigned, we had seven white men out of nine on the court. Do Haas and Schwarz think that these seven white men had some special qualification that those of another ethnicity, gender, or race do not possess?

I reproduce the letters from Haas and Schwartz below:

"To the Editor:
In the editorial “ Supreme Court nomination is a win for all” there was no mention of judicial qualifications. With decisions overturned, Ms. Sotomayor’s really does not exemplify the cream of the crop of potential candidates. She is not the first Hispanic to be named for the court. The Honorable Justice Cardozo has that distinction. It is wonderful to pursue the American dream, but as Martin Luther King Jr. put it, it is by the content of their character, not by the color of their skin. He should have added “not by their ethnicity either.” No one is excluded by society in America today, except those individuals and groups that desire not to be included. We must think of ourselves as Americans, not hyphenated Americans. America has always had ethnic diversity, but that diversity merged with the willingness to subvert that pride to a greater pride- that of being an American.
Shel Haas

"To the Editor:
A Supreme Court nomination is win for all. I wonder, forgive me but somehow I believe it’s wrong to pick a judge because of ethnic background. I mean Justice (whatever that is) should be blind. Race and religion that should be irrelevant for a judge. No, I think judges should be judged on their judgement, nothing else. And of course, it’s important for people to believe Judges are fair and race card muddies up that perception.
Gary Schwartz"

Next time I will discuss the much-maligned Ricci (aka the firemen’s) case.

Obama vs. McCain

On June 2 I posted a commentary entitled "More about McCain". 

I also published that commnentary in my local newspaper, "The Suburbanite".  This prompted a Mr Chiu to respond with a Letter to the Editor, which appeared in its June 13 edition. This in turn caused me to submit my further response, which will be printed in next Friday's edition of that paper. I think this exchange of letters highlight the issues as seen from both sides, and accordingly I want to post both letters. Below is Mr. Chiu letter.

To the Editor:

This letter is in response to Emil Scheller’s letter entitled "More about McCain".

He uses the standard Democrat fear-mongering tactic of claiming that a hypothetical reversal of Roe v. Wade would take away from a woman’s the right to choose to have an abortion. This debate about Roe is not specifically about abortion itself. It's about the separation of powers between legislative and judicial branches of government. A similar debate about judicial activism is now raging over gay marriage. In high school civics class, students are taught that legislatures make laws and judges interpret the laws.

Even if Roe were overturned, the very next day, the state legislatures, which have not officially legalized abortion in their states (since Roe made it unnecessary) would be pressured to do so and nearly all of them would. May I remind readers that, just to cite two examples, New York legalized abortion in 1970 and New Jersey legalized abortion in 1972. Roe, one way or the other, does therefore not affect New Jersey. But I guess the truth doesn't matter. Mr. Scheller and the Democratic Party will continue scaring people for votes. Because Democrats can't debate the issues, they have come to excel in the politics of fear, whether it's over judicial nominees, Social Security, or anything else.

Mr. Scheller even claims that Republican presidential candidate John McCain doesn't know the difference between Shiite and Sunni Muslims. This is an obvious lie. Mr. McCain has made many trips to Iraq. Rick Lynch and other generals gave him many briefings, specifically about how to keep various Iraqi factions from killing each other, whether it's Sunni vs. Shiite, Sunni moderates vs. Sunni al-Qaeda, or Shiite moderates against Shiite radicals.

Mr. Scheller even makes the specious claim that Mr. McCain is unfriendly to veterans. Fortunately, we have a free press in this country and know that Mr. McCain only opposed a bill that gave the same educational benefits regardless of whether a soldier had served two years, five years, or 10 years. What's wrong with giving more benefits to someone who served longer? Democrats are trying to give the impression that Mr. McCain wants zero benefits for veterans. Why do Democrats keep pushing this line even though we all know the truth?

Mr. Scheller even tries to make the argument that Mr. McCain agrees with every position of President George Bush, although it's not a given that Mr. Bush is always wrong. But Mr. Scheller and other Democrats cherry-pick what they want and ignore Mr. McCain's positions that are different from those of Bush and the Republican Party. For example, Mr. McCain opposes a constitutional amendment to ban gay marriage. Do Democrats ever mention that? No.

I have many objections to Mr. Scheller's letter but if I go on and on this letter will be even longer than Mr. Scheller's original letter. But one last thing: Mr. Scheller wants Democrats who supported Mrs. Clinton not to support Mr. Cain due to "disgruntlement." However, such Democrats who do vote for Mr. McCain will do so because, as Hillary Clinton pointed out, Barack Obama is not ready for the presidency. Mr. McCain is head and shoulders above Mr. Obama.

My response appears below.

To the Editor:

I am delighted that Mr. Chiu has decided to debate on your pages. Your readers will be well served by such a debate.

I love his way of debating. He uses all the standard Republican canards. Roe vs. Wade is not about abortion he says. It is about. “Legislators make laws and courts and judges interpret the law.” Of course we can all agree that "Legislators make laws and courts and judges interpret the law.” But what happens when the court strikes down laws passed by legislators. Aren’t they overruling the will of the elected representatives? Aren’t they activist? Well not if I agree with the decision Mr. Chui might say, “The court is interpreting the Constitution.” Well isn’t that what the court was doing in Roe vs. Wade. Well, Mr. Chiu might say there is nothing in the Constitution that specifically says that a women has a right to choose whether to carry a baby". But Mr. Chiu, there is nothing in the Constitution that specifically authorizes the Supreme Court to strike down any laws. There is nothing in the Constitution that specifically provides for the Federal Reserve, or the FDA. There is nothing in the Constitution that specifically says corporations shall have the same rights as real people. But the court interprets a document, which is short and vague, and we all, at different times, are upset by what they say it means. 

So we need a better measure of what an activist judge is. How about one that looks at it from the standpoint of which judges vote to strike down laws passed by the people’s representatives, most often. The latest statistics I can find on this cover the period from 1994 to 2005, before Roberts and Alito joined the Court, but after all the other judges now there, had been appointed. At that time the “liberal judges” were the same as now. Souter, Stevens, Ginsburg, and Breyer, but the right wing judges were, Thomas, Scalia, Kennedy, Renquist, and O’Connor. Not quite as Right as the present court, but it will have to do. How did they stack up on overruling the will of elected representatives? Here are the figures: 

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 %

Wow! The liberal judges go against the will of the elected representatives much less often than the Right wing ones. By the way Souter and Stevens were appointed by Republican Presidents, Stevens by Ford and Souter by G.H.W Bush. 

The Court just handed down a decision that says the Constitution means what it says. Habeas Corpus – the right of people not to be incarcerated without being charged on the basis of evidence cannot be suspended, or in the language of that august document “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (Section 9, Clause 2) I don’t believe we have been invaded, and I am not aware of any rebellion.” and Bush said he disagreed with it. But McCain, intemperate as usual, and anxious to outdo Bush said, “a decision which I think is one of the worst decisions in the history of this country." I would ask, worse than locking thousands of Americans in internment camps because they had Japanese ancestry? (Korematsu v. United States -- 1944) worse than forcing African Americans to sit at the back of the bus? (Plessy v. Ferguson -- 1896)...worse than slavery? (Dred Scott v. Sanford -- 1857).

But McCain make it clear on his website that he would not be satisfied with Roe vs. Wade being overturned. He would press on, and work to make abortions illegal wherever he could. So it is all about the Right to Choose. As I quoted in my previous Letter to the Editor, McCain says, “However, the reversal of Roe v. Wade represents only one step in the long path toward ending abortion.” and in an earlier statement McCain said, according to the Boston Globe of January 31, 2000, that he believed that if Roe vs. Wade were overruled, doctors would be prosecuted “but I would not prosecute a woman” who obtained an abortion. See here.

I find it amusing that Chiu turns facts on their head. “Democrats excel in the Politics of fear,” he claims. Mr. Chiu, really. It is not Democrats who invoke 9/11 over and over to instill fear. It is not Democrats who run Willie Horton ads. It is not Democrats who run Swift Boat lies.

As for Social Security, Bush has been pushing to end it and substitute private savings accounts and McCain has been a cheerleader. Democrats don’t scare anyone. Bush and McCain do with the policies they advocate.

Mr. Chiu says McCain has made many trips to Iraq and has had many briefings. That is what makes it so scary. When he confused Al QAEDA with Shiites on his last visit to Iraq, was it a senior moment as Fox News suggested, or was he showing that he can’t grasp the differences, or was he obfuscating to confuse the public, as Bush has done for so long. Can Mr. Chiu offer any other plausible explanation?

On the veterans bill Mr. Chiu claims that McCain wants to give veterans with more service more benefits. That is simply not true. McCain has not introduced any bill giving any veterans more benefits. This is what the Wall Street Journal of May 26 said; “Sen. John McCain used Memorial Day to defend his opposition to a Senate bill that vastly expands education benefits for veterans. The bill passed the Senate last week 75-22 over the objections of Sen. McCain, and President Bush, both of whom argued the benefits were too generous and likely to discourage reenlistment.”

Mr. Chiu charges me with claiming that McCain agrees with president Bush on every issue. That is again simply not true. I have said he agrees with Bush on most issues, and I gave his voting record. I even gave examples of where McCain disagrees with Bush. I mentioned North Korea, where McCain opposes Bush’s successful use of diplomacy, and I would be the first to admit that on the environment McCain positions are more environmentally friendly than Bush’s.

We are indeed fortunate to have a breath of fresh air in the candidacy of Barack Obama, who more than anyone arouses memories of John F Kennedy. Let us march with him into a world which breaks cleanly with the past, with wars of choice, obfuscation, attacks on our safety net, and deficits as far as the eye can see. Bill Clinton handed this country to Republicans with projected surpluses for years to come, and Republicans turned it into deficits of endless duration. Clinton ran on a platform, “It’s the economy stupid” and brought this country into some of the best eight years in a very long time. Well, can you believe it? “It’s the economy again stupid.” Republicans work their wrecking ball each and every time. Supply side economics indeed.

Before anything else, John McCain is a Republican and he is wed to their attachment to the rich. No, only to the very rich.

They can’t win on the issues and so they deceive and they fear monger. 

Finally, I find it amusing how they always try to attach the label of elitist to Democrats. Let me see. McCain was born to a well to do family. He married an heiress and her father put him into politics.

Obama was raised by a struggling single mother and achieved the American dream through his own talents and struggles.

McCain graduated fifth from the bottom of his class but was advanced because of his pedigree.

Obama was chosen to be Editor in chief of the Harvard Law Review.

Which of them has more in common with most hard working and struggling Americans, and who comes from an elite background.