October 26, 2017 § Leave a comment
A teenage girl from Central America entered the United States seeking asylum. She was apprehended by customs officials and detained, awaiting a ruling on her right to remain in the United States.
The girl was pregnant when she entered the United States. She concluded, based on her knowledge of her own ability and the circumstances in which she found herself, that it would be unwise for her to assume responsibility for raising a child. So she sought an abortion.
When she asked for the care of a doctor she was confronted with interference by the United States government, prompted and led by Scott Lloyd, appointed by President Trump to oversee the Resettlement of Refugees.
Mr. Lloyd had little or no experience to qualify him for that post but he did have a long record of expressing his Roman Catholic religious opposition to abortion. Based on the beliefs of that religious sect, he unleashed the power of the federal government to impose his zeal on the teenage girl and, heedless of her beliefs, force her to give birth to a child.
She was told she could abandon her right to seek asylum in the U.S. or abandon her right to abort her pregnancy. If she asserted her right to asylum, she would have to give up her right to abort her pregnancy.
The ACLU responded to this assault on the girl’s rights and, not surprisingly, obtained judicial relief for her. She obtained an abortion. This result was achieved, however, only after the girl was forced to watch a movie starring the fetus and enduring a harangue by one or more representatives of religious sects trying to impose their religious beliefs on her and warning her that, by asserting her right to abort her pregnancy, she was committing a sin.
The First Amendment to our Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” I know the key court decision guaranteeing a woman’s right tto abort a pregnancy was based on the “right of privacy” and not on this (to me at least) plain language of our Bill of Rights. The result delights me but the facts of this latest episode express, to me at least, eloquently and precisely why it is so un-American and disgraceful to subject a young woman to religious tests and forced shaming before she is allowed to make a decision about her own body.
To me the “free exercise” of religion means rejecting religion altogether is a right no less valuable than the right to choose adherence to any one of the myriad of religious doctrines commanding the devotion of men and women all over the world. I have no hostility toward religion and I am proud of our Constitution’s protection of its exercise. I do, however, regard forcing one’s religious choices on another person as a vile and evil practice with a history rife with examples of man’s ability and inclination to engage in cruelty and mass murder on a scale that beggars the imagination.
If any of my readers doubt the truth of this last statement, here is citation obtained by a brief Google search: https://christianhistoryinstitute.org/magazine/article/interview-converting-by-the-sword
The Importance of Language
I have so far expressed my outrage at the effort to impose a particular religious idea on a girl seeking an abortion. I now need to respond to those who dissent by expressing care and concern for the fetus who was the subject of the girl’s abortion.
First, I think it is useful to address the meaning of the word “person”. Here is the definition: “[a] noun : human being, individual, man/woman, child, human, being, (living) soul, mortal, creature; personage, character, customer; ,. . . .”
The absurd problem with which our laws now entangle us began with the judicial necromancy that equated the word “person” with a legal device designed to facilitate the organization of investors to pool money in a business enterprise and to limit their potential liability to the value of the device. The device is a corporation. A corporation has no pulse. It cannot be drafted or imprisoned. It can be terminated without judicial intervention. It cannot breathe. It has no pulse. It has no heart. In short it has no resemblance to a human being. Despite these facts, for more than a century, as a result of a feat of verbal gymnastics by the Supreme Court, corporations are deemed to be “persons”.
This kind of redefining words is the type of language abuse foreshadowed in Lewis Caroll’s Humpty Dumpty:
“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. “They’ve a temper, some of them—particularly verbs, they’re the proudest—adjectives you can do anything with, but not verbs—however, I can manage the whole lot! Impenetrability! That’s what I say!”
Decades later, George Orwell warned us about allowing government to redefine words in his novel “1984”. He reminded us that our laws and our Constitution protect us only to the extent stated in their words. And when we loose words from their moorings and allow them to be redefined by power-seeking politicians, we endanger our freedom. Here is New York Times 2007 essay expressing this concern, one I fully share:
As a result of the above referenced Supreme Court decision conflating a corporation with the word “person”, when the government of the United States seeks to regulate the activities of a corporation it must do so within the confines of our Bill of Rights. It is my fervent hope that, sooner or later, our Constitution will, be amended to solve this absurdity with an amendment. We regulate the actions of motor vehicles on our roads and I am confident we will be able to regulate the activities of corporations without the pretense based on this nonsense.
One result of this misinterpretation of the word “person” is the Supreme Court decision that enabled corporations to engage in politics and finance candidates for election. In other words, a brainless, conscienceless zombie creation of one or more people has potential influence on the election of government officials equal to an actual human being.
Another pernicious result of this institutionalized ignorance is the notion, enthusiastically embraced by the religious zealots who feel divinely appointed to impose their religious doctrine on expectent mothers, equating a zygote to a “person” entitled to all of the protection of the Bill of Rights. [To appreciate the twisted interpretation of language this idea requires: Here is a definition of a zygote: “A fertilized female egg from which a baby will develop is an example of a zygote.”]
A zygote is not a person. A person is a living breathing animal who has been removed and disconnected from a woman’s womb. Confusing the meaning of words to blur this distinction leads to unnecessary intrusion into the rights of a woman while she cares for and nurtures her unborn child. It does not add protection to the child and it infringes the rights of the mother. Separating the rights of a mother from the rights of her unborn child enables meddling outsiders to interject themselves into what is the most personal and intimate relationship of our species: the relationship of a woman to her own body.
We now have members of various religious sects picketing clinics where abortions are performed; political efforts to make such clinics impractical for low income patients to access by locating them hundreds of miles away from population centers; requiring waiting periods requiring overnight stays, thus increasing the expense and, again, denying access to low income patients – the imagination of those hateful people intent on “protecting the unborn” while harassing expectant mothers is fueled by their self righteous zeal.
I know this effort is an angry one. I am angry. I have daughters, grand daughters and great grand daughters. The possibility that they can be bullied and defamed because of their personal religious ideas or their lack thereof outrages me. I know they, like he rest of us, may be prey from criminals who wish to harm them. That risk is part of living in a world with a diverse population.
That said, however, it makes me angrier that their safety and self respect may be threatened by religious zealots who presume to impose their ideas of morality on my family. I believe morality and religiosity are personal matters so long as they don’t infringe the rights of others. If a person’s religious belief is that abortion is wrong, he or she should discourage his family from engaging in it. If, instead, he or she believes his relationship with the God of his or her understanding empowers him or her to meddle into the beliefs of my family, then he or she loses my tolerance as I would expect him or her to react if I presumed to lecture him or her about my ideas about his or her religion. The idea that religious zeal entitles one to use the force of government to impose religious conformity on others is abhorant to the idea of America.
It is of no concern to me whether my neighbor chooses to worship God through the good offices of a Pope or through his own understanding of the Bible or through some pattern or structure he conceives for himself after solemn thought. I once knew of a man who, after reaching middle age without giving any serious thought to a belief in God, felt the need to add religion to his life. He finally elected to worship a palm tree in the South Texas town where he lived as the object to which he directed his prayers.
I sincerely respect the right of everyone to choose for himself or herself the object of religious devotion. I do not, however, have any tolerance for anyone attempting to recruit me into his or her religious sect by disparaging my conclusions or the conclusions of others about religion. I believe the choice of a religion and the choice of whether or not to give birth to a child are two of the most personal matters best left to the personal judgment and choice of each human being in a free society. Those choices should not be voted on. They should not be publicly shamed or disparaged. They should not be the subject of laws seeking to impose religious tests and doctrines. This is the land of the free and the home of the brave. It is not a laboratory for experimentation and moral dictation by self appointed religious monitors.
May 1, 2013 § Leave a comment
Last year, in October, I posted some pessimistic comments about the drafting of Dodd-Frank regulations. See The Details Devils. Those regulations involve the jurisdiction of four different federal agencies. They are necessary to implement Dodd-Frank’s purpose: To limit the ability of Wall Street banks to wreak havoc on the economy by creating and marketing risky and deceptively complicated securities. I cited three articles from the New York Times and Bloomberg News describing the bitter multi-agency struggles concerning the effort to separate investment banking from commercial banking, generally known as the Volker Rule.
Since then I have expressed my gloomy opinion that corporate capitalism seems to have overpowered the ability of our government to rein in its most destructive inclinations. See Capitalism and Democracy – Symbiotic Conflict.
Today’s New York Times has a story about the struggle between government regulatory agencies and Wall Street banks concerning proposed Dodd-Frank regulations. See story.
Lastweek I read a lengthy article in The Nation by Gary Rivlin, “How Wall Street De-Fanged Dodd-Frank“. The author, a talented reporter, has described, in detail, how armies of lobbyists and lawyers, financed with unlimited money from Wall Street banks and a consortium of corporate organizations and trade associations, have overwhelmed both the officials charged with drafting and seeking adoption of Dodd-Frank regulations, and the members of congressional committees having oversight of those subjects.
The characters in this melodrama are interesting. One member of the corporate wrecking team is Eugene Scalia, son of Supreme Court Justice Humpty-Dumpty Scalia. His role is to file multiple law suits designed to embroil the regulatory drafting process in litigation for years and thereby thwart Congress’s effort to protect the American economy from a repetition of the 2008 financial debacle. According to Rivlin’s article, he is succeeding swimmingly.
One of the associations funding and sponsoring the lobbyist members of the wrecking crew is our own Kenneth M Bentsen, former member of Congress and now head of the Securities Industry and Financial Marketing Association, nephew of Lloyd Bentsen. We all remember Lloyd. He’s the guy who waged a successful smear campaign against Senator Ralph Yarborough in 1970, later made an unsuccessful run for the presidency, then was rewarded by the Democratic Party with a nomination for Vice President and running mate with Walter Mondale; then, when that didn’t work out, was again rewarded by President Clinton, who appointed him Secretary of the Treasury. Oh yeah, we remember him. Looks like his nephew is carrying on the family tradition.
Why is it, that every time some absolutely putrid, disgraceful process takes place in Washington D.C., some Texas yahoo shows up in the middle of it? When Ken Bentsen was a congressman, I thought he was a new generation of Bentsens; that maybe he was going to renounce the dark side. Guess the money was just too good to pass up.
I won’t try to summarize Gary Rivilin’s article. It is long but I urge you to read it. If, as I have written, there is a war going on between democracy and capitalism, Wall Street banks possess the nuclear bombs. They have already demonstrated that they are irresponsible and reckless custodians of those weapons. We are still living with the resulting economic ruin. Dodd-Frank represents an effort to disarm them. So far, the prospects don’t look promising.
April 6, 2013 § Leave a comment
A PERSONAL NOTE
This is my “new and improved” Phoenix edition, “Bob’s Remonstrance II”, “Bob’s Remonstrance Redux”, “The Remonstrant Returns”, “Bob’s Remonstrance Second Edition” or “I’m Baaaack”.
I fell and broke my right arm on February 15 and typing is still somewhat awkward, but not too difficult. I’ve been watching the succession of farces and tragedies breathlessly chronicled on cable news channels and have a few thoughts I’d like to sort out and organize by writing about them. So, “Once more dear friends, into the breach….”.
THE HELLER CASE
For the past couple of hours I’ve been wading through Tony Scalia’s opinion in District of Columbia v.Heller. I have to admire his audacity. In order to reach his conclusion: That the Second Amendment protects the right of individuals to buy and possess guns, he had to ignore the obvious intent of the Amendment as well as ignore or reinterpret several decades of judicial precedent. To do so, he had to embody the comic self-confidence of Humpty Dumpty, who famously declared, “‘When I use a word’, Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less. ‘The question is’, said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.'”
THE SECOND AMENDMENT
“A well regulated Militia being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed” Scalia begins his analysis by acknowledging the obvious: “The Amendment could be rephrased, ‘Because a well regulated Militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.'” (emphasis added) He labels the preliminary clause, a “prefatory clause” and acknowledges that it requires a “logical connection” between it and the remaining language of the Amendment.
So far so good.
But then, Humpty Dumpty takes over and Tony is off to the races. He begins the serpentine path to his conclusion by stating that the “logical connection” between the prefatory clause and the rest of the Amendment is only significant if consideration of that connection is required to resolve any ambiguity; that the only usefulness of the prefatory clause is to “clarify” the remaining language.
In the remaining pages of his opinion Scalia argues that, because the language at issue is unambiguous, no “clarification” is required and, hence, ” we don’t need no stinkin’ militia”
The fact that a 1939 Supreme Court decision (U.S v.Miller, infra) plainly interpreted the “prefatory clause” as a limitation on the meaning of the remaining language, and that hundreds of lower federal courts had likewise interpreted that language for decades, did not, to Humpty Dumpty Scalia, hint that, at the very least, there was some ambiguity. Like Humpty Dumpty, he was the “master” and it looked plain enough for him.
THE SECOND AMENDMENT ACCORDING TO HUMPTY DUMPTY TONY
Scalia’s lengthy opinion includes quotes and citations to a massive set of historical documents and references to treatises on Constitutional law from American and British authors. (never mind the yow-yow about “foreign law”). Some of these authorities support his conclusion and some do not, but he plows ahead, discounting the authorities that agree with him and crowing about those that do. For example, he quotes from state constitutions whose language must have been known to the framers of the Second Amendment. Pennsylvania’s constitution provided, “That the people have the right to bear arms for the defence of themselves and the state.” To some analysts, the specific reference to individual rights to guns suggests that the Second Amendment’s omission of such language implies that no such right was intended. But not to Scalia.
In order to find precedent to support his conclusion, Scalia imports an old defamation case from the Massachusetts Supreme Court. The Massachusetts constitution provided, “The people have a right to keep and to bear arms for the common defense . . . . ” In Commonwealth vl Blanding, a libel suit brought against a newspaper, the Chief Justice wrote, “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse, like the right to keep and bear arms, which does not protect him who uses them for annoyance or destruction.” Scalia interprets this dicta about gun rights to mean that the Massachusetts provision for the right to bear arms was not limited by the reference to “common defense”. He wrote, “The analogy [drawn by the Massachusetts court between gun rights and press rights] makes no sense if firearms could not be used for any individual purpose at all.”
It is Scalia’s statement that “makes no sense.” The limits of a right in a constitution is not equivalent to a ban on behavior or practice not protected . Stating that Massachusetts citizens had a right to bear arms for purposes of “common defense” did not mean they were prohibited from keeping guns for hunting. It just meant their private ownership of guns was not protected to the same extent as their right to keep a gun “for the common defense”.
One of Scalia’s most heroic efforts was required to square his exegesis with the Supreme Court decision in United States v. Miller. In this federal criminal case, the defendant was convicted of illegally transporting a sawed-off shotgun across state lines. On appeal, he argued that his Second Amendment rights had been violated.
The Court disagreed and confirmed his conviction. They held that the “militia clause” in the Second Amendment limited the protection of gun rights to guns appropriate for use by militias. They decided that sawed-off shotguns were not the kind of weapons useful by militias and, thus, there had been no constitutional violation.
The plain thrust of the Court’s reasoning was, contrary to Scalia’s arguments, that the “prefatory clause” was, indeed, a limitation on the sweep of the protection provided by the remaining language of the Second Amendment. Scalia, however, was undaunted. He interpreted the decision as an affirmation of his analysis. He wrote that, if the Court had believed that the prefatory clause limited the meaning of the remaining language, they would have ruled that, because the defendant was not a member of a “well regulated militia”, he was not entitled to the protection of the Amendment. Since they chose not to base their ruling on that argument, he read their minds and declared that they agreed with him.
Scalia does not disclose whether the United States argued the issue that he insists was decided sub silentio by the Court. He simply applies his Humpty Dumpty authority to the matter and moves on.
SOME PARTING SHOTS
One of the ironic features of Scalia’s skewed and transparently sophistic analysis of the Miller case. is the fact that the Miller decision was authored by Scalia’s mirror image predecessor, Justice James Clark McReynolds. Like Scalia, McReynolds was perhaps one of the most despised and controversial men ever to serve on the Court. He was an anti-Semitic ill mannered misogynistic reactionary. When Louis Brandeis was appointed to the Court, McReynolds did not speak to him for three years. When Benjamin Cardozo was appointed, McReynolds said, “Huh. It seems that the only way you can get on the Supreme Court these days is to be either the son of a criminal or a Jew or both.” He waged relentless war on FDR’s New Deal legislation. When a woman lawyer appeared to argue a case, he would remark, “Here is that female again.” He sometimes left the bench and refused to listed to arguments made by female lawyers.
I don’t mean to imply or allege that Anton Scalia is anti-Semitic or misogynistic. I’m sure that is not true. He is reported to enjoy a close friendship with Justice Ginzburg. He does, at least to me, resemble McReynolds because, like McReynolds he barely conceals his zealous adherence to an ideology that has little or no respect for precedent or logic. I think he and his cohorts, Alito, Thomas and, perhaps, Roberts, are dedicated to undoing much of the law made by the Supreme Court since 1937.
I would have more respect for Scalia if he would simply vote to overrule precedents with which he disagrees. His tortured analysis is an insult to intelligence and the law.