Saturday, March 2, 2024

A Prayer for Aaron Bushnell


On Thursday night, I had this notion to pray “for” Aaron Bushnell; that is, to assist him in some way. However, I have never been comfortable with the idea of intercessional prayers. The idea comes laden with all sorts of unprovable assumptions: that Aaron still exists, to be helped; that anything I can do could help or initiate help for him; and last, but not least: if God knoweth all and loveth all what need has he of me tell him what his job should be? So then, who am I really helping here, Aaron or myself and my own disturbed feelings at his distressed feelings which led him to take his life on account of the beneath human putrifaction that rules in Jerusalem, Washington and the decrepit West.

So apart from this jumble of thought and intentions, how should I start my prayer? It seemed to me that I had to envision Aaron going up in flames and hear in my mind's ear his shouting “Free Palestine!” And that is what I did, but no sooner I did it than it seemed too “hot” to get too close too. And “hot” was the least of it... I don't want to say “darkness” but there was a kind a sacra off-limits about what was going on beneath those flames. So then, I thought: am I strong enough for this ... to carry on with this intention? Am I courageous enough to bring the inner essence of his suicide close to my own innermost self?

At this point I just gave up and started to intone silently: have mercy on him, have mercy on him. ... I did not mean have mercy on him for his having done some wrong. I meant “mercy” in the sense of “shower him with your loving kindness.” I had no idea whether what he did was right or wrong. All I knew was that it was an ultimate sacrifice which by nature is beyond ordinary limits and therefore in a place where most of us do not go to.

And then, “have mercy on him” became “have mercy on me.” As for whether any or this helped Aaron... I have no idea. I hope so. I wish him well.

----

On further consideration, I have concluded that Aaron Bushnell did the right and noble thing. I am disgusted to the core at MediaControl's attempt to diminish his sacrifice by calling into question his mental stability. At least Madame Gnu was honest enough to forthrightly display her repulsiveness by calling self-immolating monks, “human babacue.”

I get to my conclusion rather simply and by analogy. During the Great War, young men on both sides of the death-strip went “over the top” for God, King and Country. They did so knowing full well that there was an 87.3625% chance that they wouldn't make it

Eine Kugel kam geflogen
Gilt sie mir oder gilt sie dir
?

I would not be the first to say that, over those trenches, Christian Civilization committed suicide. Or as Marine Corp sergeant Daniel Daly put it, rather less poetically, "Come on, you sons-o'-bitches, do you want to live forever?"

Either way, we honour the men who chose not to live forever; and we do so, if we are sensible, regardless of which side they were on because what matters is that they chose to give their all. Soldiers understand this. Unfortunately, civilians “bawling allegiance to the state” do not.

I personally agree with the cause for which Aaron Bushnell immolated himself. It is too early to tell if it was a futile act or if it will let loose a chain of consequences that will alter things. But in either case you cannot ask more of a man than that he give his all; and for having given it, he deserves God's rewarding mercy.

©

Friday, February 23, 2024

Inner Emigration


During the World War a number of German intellectuals, writers, pastors, professors and even army officers practiced what was later described as inner emigration -- an interior withholding of consent to the policies and actions of the regime.

Inner emigration is not the same as underground resistance. The latter is affirmative action against a regime by stealth, surprise or subversion. Inner emigration, by contrast, is simply a private posture, a kind of “I'm here but not here” thing. Resistance presupposes hope; inner emigration, hopelessness.

Inner emigration was not limited to “good Germans.” In the 1960's large portions of American youth emigrated inwardly -- they were known as “Hippies.” Giving the maximum possible credit where credit is due, hippies realized not only that the system was evil and corrupt but, worse yet, impermeable. Confessing their political powerlessness, they tuned in and dropped out.

The occasional justification for this posturing was that by dropping out they were creating an “alternative” culture and society. But this was a mirage. The evil system quickly found ways to commodify and subsume the alternative; so that, in the end, hippies ended up perusing NiftyStuff Catalogues, buying Volvo's and “sensibly” investing in real estate, all the while assuring themselves that, unlike their square parents, they had (somehow) protested the war.

I don't want to come down too hard on the hippies; for, it has to be said in the 1970's a wave of religiosity also swept over the the United States. The two phenomena were related, but the religious one gave up all pretence of being, or forming or leading to an alernative society. It was simply the Big Drop into Self, most perfectly exemplified by the mindless Hare Krishna chanters on Powell and Market or in airports. Be that as it was, from chanting, to Zen, to Pentecostalism, to the New Jesus Movement, to TM and EST and a hundred obscure spiritual sects people gave up on politics and fell to micro managing their inner selves. The war makers, financiers and mass marketters could not have been happier.

“What is that?” my mother asked. “It's a zafu,” I replied. “What's a zaahfoo?” “It's a meditation cushion.” “You don't need a cushion to meditate,” she scathingly replied. But I'm not meditating! I protested; and, in truth I have never been able to meditate for more than 30 seconds. I just wanted to decorate the house a la japonnaise. But no one should doubt the ability of “the system” to merchandize and hence emasculate anything.

Not surprisingly, in the late 1970's various French historians began to wonder if this all had not happened before; and, of course it had, the result being a series of books on the “interiorization” of “political” life, known as the rise of Christianity and the fall of the Ancient world -- one chapter being dedicated in all seriousness, to the “advent” of private toilets in lieu of public ones.

In Europe, the rise of private toilets did actually lead to the evolution of an alternative civitas, known as Visigothic, Ostro- Gallo- or Germano-Roman depending on one's preference of labels. But in the 1970's the American Empire was far from collapsing and, instead, the forces that be found ways to evolve a totally kitsch politics -- an activism based on symptomatic issues (organic food, smoking and smog) and personal entitlements, sub nom “civil rights.” At the same time, the rulers of the country liberalized the market, exempting corporations from all sense of civic responsibility and enacted an all-volunteer military, thereby exempting individuals from the otherwise minimum obligations of citizenship. The result: individuals could pursue their “entitlements;” business could pursue its profits, and the government could pursue its wars without there ever again being any push-back.

At least until this past October. The announced and blatantly executed genocide carried out by the Trio from Hell was so grotesque that it provoked universal condemnation from the ordinary people and lesser states of the world. Unfortunately, the situation has only served to illustrate how actually powerless the people of democratic societies actually are and how completely entrenched the neo-liberal and neo-con rulership is. Over the past 50 years they have so totally atomized the substance of “civic society” and so completely dominated the levers and avenues of political and cultural power that the protests for all their anger and moral force are but a drizzle over the landscape. The impunity with which Western leaders insult the protestors, blatantly lie to the public and, in Israel's case, say things that would make a Nazi blush (oh yes; oh yes) indicate that they are not in the least worried that their nefarious designs will be interrupted. Even the Yellow Vests provoked a more serious response from the state.

So...we are once again faced with the German question: what to do when one is powerless to do anything? It is a moral dilemma to which I do not have an answer.

I trust it will not sound too effete when I say that there can be no doubt that “exposing” one's self to the horrible images of Israel's brutality in Gaza produces a form of PTSD. It is not as acute as the trauma of actually being there, but it is also a trauma that is not compensated for with adrenaline. The result is a kind of masturbatory fetish where one goes back for more thinking that knowing is at least “being responsible” when in fact knowing does nothing but underscore the impossibility of accomplishing anything. On the other hand, “tuning out” and ignoring the inhuman savagery while one goes about one's life unhindered and unimpeded, traipsing through strawberry fields, is form of indifference that is itself inhumane and criminal... all excuses aside.

So ... 1970's redux. I will only say that if anyone thinks private toilets or chanting mantras on street corners will make an “unseen” difference, I can only say that that is an illusion. Whether one is up to it or not, if one is honest, there is no emigrating from this fight.

©

Saturday, November 11, 2023

With Burning Regret


"Hezbollah is making mistakes, and the citizens of Lebanon will be the ones to pay the price," Israeli defence minister Galant said. "What we do in Gaza we can do in Beirut."

Well now... what exactly IS Israel doing Gaza? Let us not ask Antonio Guterres. Let us not ask millions of protestors around the world. Let us not even ask Manuel Macron. No. Let us ask the Israeli government.

According to them they are "targeting" Hamas leaders and fighters.

Target v. "to select as an object of attention or attack."

In other words, they are taking their 155mm artillery shells and MK80-JDAM guided 2000lb bombs and "aiming" them at coordinates where a Hamas leader or unit is supposedly located.

WE ARE NOT "AIMING" AT CIVILIANS!!!! WE WOULD NEVER DO SUCH A OUTRAGEOUS, INHUMANE THING.

Certainly the Israeli High Command know that the precisely targeted 2000lb bunker-buster-bombs cause tremendous collateral damage; but that, they argue, is immaterial because they do not "INTEND" to target civilians and, absent intent, there is no crime.

The same is said with respect to the use of white phosphorous which, the Israelis claim, is only intended to light up the battle-scene not to burn anyone to the bone.

They insist hotly, earnestly, adamantly and to the point of outrage and anger they they do not INTEND to cause civilian casualties, although they admit, with deep regret, that collateral civilian casualties are caused.

That's their argument.

 


Okee dokee; so cometh now Gallant and says: "What we DO in Gaza we can DO in Beirut."

Does anyone catch the difference between "what we INTEND" and "what we DO;" between "what we are trying to do" and what we are doing" ?

Gallant knows perfectly well that what Israel DOES in Gaza is (to date) kill 10,000 civilians, and reduce a city to rubble. In so saying he admits to his real intent.

Let us bend over backwards and suppose that when it began the bombing of Gaza Israel had no idea what the collateral damage of its "targeted" missiles and bombs would be. My golly!!! We wish the Amis had warned us how destructive these things were. We had no idea!

Okay... but they know now, and it threatening to DO to Beirut what they did DO to Gaza, Gallant is threatening mass civilian deaths. And he does so without any qualms.

He takes pride in his threat. What I can DO, I will DO!!! It has a godlike ring to it, does it not?

And lest there be any doubt; whereas Gaza is located in Gaza, Beirut is 60 miles from the border with Israel and 60 miles from the Hezbollah units firing on the border.

Out of their own mouths, by the very words they used, they have admitted to DOing war crimes in Gaza.

©

Saturday, October 21, 2023

A Letter to the Pope: Deus non vult!



21 October 2023
Your Holiness:

Yourself, Patriarch Bartholomew, Patriarch Kirill, Archbishop Justin Welby, all bishops of the Church and all leaders of Christian Denominations must unanimously and unequivocally condemn the State of Israel's disproportionate and genocidal response to the Hamas act of terror on October 7th.

If you fail to do so, then never again presume to criticise his Holiness Pope Pius XII.

I am an insignificant nobody without the least influence over my corrupt and corrupted leaders or the swill of our mainstream media. But it is intolerable to sit at my computer and watch the mass destruction and slaughter of a ghetto on live-stream. "Never again" Really?

Your condemnations must not be equivocal or hedged with false balance. The Israeli defence minister called the Palestinians "animals." Indeed, a cornered animal will act irrationally. But who did the cornering? A disproportionate response to a criminal act is itself a war crime and when that disproportionality destroys, displaces and degrades an entire population with willfully indiscriminate intent that is genocide.

Those of you who presume to speak in Christ's name, must speak out now. Only your united veto can put a stop to the barbarism of our secular leaders.

Respectfully,


©

Wednesday, October 18, 2023

Biden Anchors America to Israel.


The United States is run by insane imbeciles.

Biden flies to Israel and like a dog to its master does huggies and kissie poo's with the most thuggish, corrupt and polarizing figure in the region. Bibi is even loathed by one half of his own country. Huggies from POTUS should be doled out like mana. But, I guess punks have an instinctive affinity for one another.

As if the optics weren't bad enough, the sonics were even worse. "As long as the United States stands -- and it will stand forever -- we will not let you ever be alone" intoned Biden. And to wrap up: "...the United States stands with you. We'll walk beside you in those dark days, we'll walk beside you in those good days to come."

The United States will stand forever? Really? To a people who have outlasted the Egyptian, Babylonian, Roman and Holy Roman empires, that must have sounded like a childish brag. It is certainly hubristic. It is one thing to say that, with God's help, may we last forever. It is quite another to announce point blank that we will. Compared to Biden's "forever," Hitler's One Thousand Year Reich almost sounds humble. At any rate, hubris is a form of insanity and when our leaders give the slip that they have lost grip on reality, we ought to at least take note.

But back to the point, has an American president ever given an unconditional commitment to stand by a foreign nation forever? For that was the unmistakable import of Biden's foolish palaver.

There are some, who thinking they are savy realists will cynically say that Biden's commitment was "just rhetoric." Actually... diplomacy is the art of evasion. The whole point of diplomacy is NOT to commit one's nation to any one course of action and certainly not to another nation. The last time that rule was flaunted with lock-step commitments, the result was a Great War.

If Biden was playing to a home-grown audience, he was downright derelict in his duty to represent the country to the audience of other nations.

In fact, Biden proved himself to be nothing but a minion. It was nauseating to watch him regurgitate the Likud's narrative.

What is fundamentally at issue here is the implementation of a "two-state solution." That was the basis for the original partition of Palestine in 1948. That basis was reaffirmed in 1974 by UN Resolution 194. That is official United States policy. So what did Biden say?

Speaking of a "resolution" to the crisis, he said, "for me that means a two state solution."

For me????? For me????? He speaks for the fucking United States, not for himself. He couldn't even manage to read the riot act to a state that is dependent on U.S. financial largesse and military assistance.

Other than stating his personal preference, the only thing he called for was (a) the destruction of Hamas (which was duly elected) and (b) for Palestinians to live in conditions of peace and dignity. Say what?

The issue is statehood. In calling for conditions of peace and dignity, Biden was in fact accepting Israel's current apratheid policy of denying statehood to Palestinians. Biden just prefers that the conditions in the apartheid enclaves be secure, peaceable and provide enough goodies to the inhabitants as will keep them quiescent.

That is not going to work; and that means that the only other solutions are: (a) continued repressive occupation or (b) forcible relocation (aka ethnic cleansing). At best, if we are all lucky, that will only push another generation of Palestinians into unquenchable rage and push Israeli's into a war-induced state of permanent psychosis.

I do not place all the blame on Israel for the impasse. The Palestinians have been equally intransigent. But in 1982 and then in 2017 the PLO and then Hamas accepted in principle the idea of a Palestinian state within 1967 borders. THAT is the goal of U.S. policy and THAT is what Biden should have seized the occasion to insist upon.

Instead Biden seized the occasion to let out more of his inner punk. Oh yes. Democrats might want to ignore it, but his constant snaps and snarls are there for all to see. As when during a 2020 town meeting he called a questioner a "damned liar" and challenged him to a push-up contest. Or when, denouncing the defund-the-police movement, he shouted into the mic, "there's NO PLACE!! in this country NO PLACE!!! for endangering the lives of law enforcement NO PLACE, NONE, NEVER, PERIOD!!!!! This supposedly avuncular Joe has a pronounced tendency to punch his message through. This punctuated yelling at you, is a form of threat and intimidation. So, when it came to Hezbollah, it was hardly surprising that Biden's message was a pounding "DON'T!... DON'T... DON'T."

Biden may get away badgering Anita Hill, challening overweight blue collar workers and shouting down reporters, but if he thinks this display of gerontological toughness impresses Hezbollah, he is gerontologically deranged.

But perhaps this too was just another rhetorical display designed to make Lindsay Graham happy. Alas, we are not on Capitol Hill but rather in a region that is on the edge of a possible conflagration.

Having just announced that two carriers groups were heading to the region, Biden was clearly threatening Hezbollah with American military retaliation. In other words, he was committing the United States to involvement if and when Hezbollah should decide to do whatever Biden didn't want it to do.

Brilliant! Hand the trigger to Hezbollah which now gets to call the shot on whether U.S. troops get involved. That is the stupidest thing a nation can do. Should Hezbollah act against Israel then the U.S. can (a) humiliatingly retreat from Biden's "DON'T DON'T DON'T" or (b) venture into the maelstrom.

Biden's DON'Ts would have better been directed against Israel, which only hours before his arrival had bombed an airport and Syria and various border locations in Lebanon. Why is Israel poking a hornets nest? Hezbolla had nothing to do with the massacre on Oct 5th. Biden might recall, that contrary to MSM's propaganda, the last time the IDF took on Hezbollah, the IDF got creamed.

As it will if it undertakes a ground assault into Gaza. There are 300 miles of tunnels in Gaza. Let's do a Biden. 300!!! 300!!!! 300!!! So we'are talking about a two-tiered Stalingrad. Urban warfare on the surface and urban warfare in 300 miles of underground tunnels.

That is one bloody clusterfuck waiting to happen. Israel's only "solution" is to create a desert of rubble and call it victory. Suppose that "works" and that it works without provoking Hezbolah. Then what?

Assuming that the approximately 1 million youth of Gaza accept occupation quiescently, Israel has NO plans for administering, controlling, feeding, and taking care of the 2.5 million huddled into half the space. No plans for preventing starvation, or controlling outbreaks of disease or insuring that the sewage system works.

Genocide is not limited to the drama of gas chambers. Engineering conditions that will result in mass deaths qualifies just as well.

So the most the "Most Powerful Country on Urth" can wrangle out of Israel is an agreement not to prevent humanitarian assistance (paid for and provided by others) from crossing into Gaza from a single point on the Egyptian border?

Whatever side one wants to take in this matter, Israel's retaliatory rage is not a winning policy. It avenges an appalling act of murderous terror but it fails to address the underlying problem which being underlying will perist. And so, Israel's policy ends up being no more than murderous madness. And it is to this madness that our punk-imbecile president has committed the United States "forever."

As Israel cuts the electricity to Gaza, so the U.S. mass media apparatus cuts the light of information to the dumbed down American public. Gaza is not a separate country. Israel has prevented it from becoming a sovereign state. So then, what is Gaza's status? It is occupied territory and under long established international law Israel and Israel alone is responsible for the welfare of the inhabitants of the occupied territory. Allowing truckloads of water bottles, band-aids, and powdered milk to cross the border does not qualify as insuring the welfare of the population. And yet the craven American press treats Biden's "gaining" this pathetic "concession" as some great diplomatic feat on our part and humanitarian gesture by Israel. Shameful.

Equally nauseating was Biden's blather about a "pathway" and "framework" for peace. The one offer the Likud can't bear to accept is the peace of a two-state solution. They have resorted to every artifice to avoid building on Hamas' acceptance of 1967 borders. It is a gross distortion say that Biden is "standing by" Israel. He is supporting an extremist party within Israel -- a party that calls Palestinians "animals."

What is truly dismal, is that U.S. political class is so utterly brainwashed by the narrative of an extremist party in Israel that no one in any position of authority thinks of dancing to other than Bibi's tune. Oh, I am sure there are some wonky people in the State Department or in think tanks that will point out how diastrous all this is, but they have no influence. Unfortunately, mainstream Jewish organizations in the United States are not using their influence to read some sanity into U.S. policy.

It will be a bloody miracle if this does not blow up in our faces, at which point the U.S., which has already lost its proxy war in the Ukraine will be faced with another unwinnable war in the Middle East. Oh joy.

©

Sunday, August 20, 2023

In Defence of the Court

 


There is circulating a meme picture of the Supreme Court that depicts six of its conservative members in KKK hoods. This is obviously part of the Democrat Party's ongoing attempt to delegitimize the Court. The KKK was a vicious, sadistic organization that lynched Negroes and burned them alive or dragged them to their death while terrorizing whole neighbourhoods. The picture is a slur too far.

But even apart from such demagogic excesses, the Democrat assault on the Supreme Court is a greater threat to our system of government than any, assumedly bad, decision of the Court. It is time for the Demorats to stop it.

I would never deny that politics is not involved in Supreme Court decisions; of course it is. But it is a kind of politics that is restrained by precedent; that is to to say by the fair meaning of words within custom and usage. A judge or justice can get to the result he wants but he has to rationalize it in a certain manner. That manner does not include advertising, electoral hoopla, dramatic rhetoric snatched of out thin air or riding on some popular meme. It is rhetoric and reasoning according to the manner judicial decisions have been arrived at.

To give an example. The Fifth Amendment provides “nor shall private property be taken for public use, without just compensation.” Implicit in that provision is the recognized power of government to take property. Two conditions are imposed: (1) compensation and (2) “public use.” But what does “public use” mean? Does it include a municipality taking your property in order to allow Walmart to build a Super Store in your town?

One would think that “public use” meant precisely that: some publicly owned use, such an a highway, a dam, an airport, a municipal park. Indeed, long standing Supreme Court precedent had always interpreted “public use” to mean just that sort of thing. But in Kelo v. City of New London, 545 U.S. 469 (2005), the Court held otherwise. Public use included taking your property and giving it to Walmart, sub nom “comprehensive development plan.” A better fascist marriage between government and corporations could hardly be imagined.

So the question in this case boiled down to: what to we mean by “use”? Does “use” include “indirect use” or “benefits” ? After all the land was not being given to the owners of Walmart et al. for their private residence but for shopping centers open to and used by the public. Plus (and this is the part to salivate over) the “redevelopment plan” would provide “tax revenues” to the city which is a public entity.

Arguably “use” includes “benefit” and, in the abstract the only “answer” is how many vote yes or no on the question. But the issue raised more than an abstraction or (in legal usage)more than an “issue of first impression.” There was precedent: how have the collective we (“the saints assembled”) interpreted “use” in the past? Well... their verdict was unequivocal: use meant “use by the public under government auspices.”

So what does “auspices” mean....? And so on.

But one gets the point. Judicial law is politics but one in which the results depend on grammar, the fair meaning of words, the soundness of reasoning, (with a dash of rhetoric), and ...in the end... what you can or cannot get away with... within reason. What one cannot do, is substitute one's own tabula raza ideas about things.

This is the distinction that Hamilton draws in Federalist Paper No. 78. The Legislature, he says, acts on the basis of WILL. The judiciary exercises JUDGEMENT. Congress can pass any law it pleases, whatever the bee that enters it bonnet. The Supreme Court is required to compare the fair meaning of words within our custom and usage. That is “politics” but one requiring a certain knowledge, training and above all, restraint.

So what about Kelo? The majority departed from previous understandings concerning the meaning of “public use” in order to expand the term according to their own notions of what it should mean. While it was not an illogical interpretation, it was not one that was restrained by prior usage.

According to the dissent: “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. ... Something has gone seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not”

Go RBG!!! Go Girl!!! Read those Federalist Society / Heritage Foundation justices the riot act!!!!

Uh.....Justice John Paul Stevens wrote the majority opinion, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Justice O'Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas. dissented.

All of which brings me to my next point which is that the division of the Court between “conservatives” and “liberals” is so haphazrd and riddled with exceptions as to be meaningless... at least the way it is presented. There is a distinction in the reasoning processes judges follow in analyzing a question and working toward a conclusion, but even this is often nuanced. What I can say very broadly is that the difference is between those who espouse a sociologically infused “analysis” and those who espouse legal formalism; i.e. adhering to the text of what has been written.

I will return to the question of judicial methodology shortly. But first we might very well ask why have a Court at all? Isn't it just an oligachical device to thwart the will of the all knowing all beneficent democratic majority? You bet it is. And with good reason. The Court is our tribunicia potestas.

From history we will recall that, as a result of a plebian revolt, Rome established a college of five tribunes any one of which had the power to veto any act of the Senate or Assembly. The person of the tribune was sacred and his word was final.

Well, what sense did that make? Why have an Assembly at all, if some clown in a special toga can simply nullify whatever it does? How can you trust these “tribunes”? To which I ask: how can you trust the Assembly? Has the majority always ruled well and wisely? It was the majority in the Athenian assembly who voted to send ships out to slaughter every Melian man woman and child. Only when they sobered up the next morning did they realize what a vile thing it was and sent out ships to recall the ones they had sent the day before ... And row hard, by Jove, row!!! A tribune might have helped.

The simple and philosophical fact is that all society is always a balance between “the one and the many” and we have to trust both because we can trust neither. Can you prove in some sort of Cartesian way that the tribunician power is a good thing? Not really, but it served the Romans well enough for 700 years.

The thing that needs to be borne in mind is that the tribunician power is negative. It can stop but it cannot initiate. This distinction is what saves it from being tyrannical. As Voltaire wrote, “a tyrant is the sovereign who knows no law but his own caprice.” In our system the sovereign is Congress; and Congress, which has the power to make and unmake law, knows no law but its own caprice. The fact that our tyrant is democratically elected doesn't solve the problem of bad laws. We may, like the regretful Athenians, recall bad legislation by electing different representatives or parties to power; but sometimes it may be too late.

So this is Hamilton's argument: In America “We The People” are the true and only sovereign. But “We the People” spoke only once, and that was when we ordained the Constitution. So the Constitution (and by understood inclusion the Bill of Rights) is the one true expression of the will of truly direct popular sovereignty. Congress is only a derivitive sovereign. The Judiciary exists, then, to protect the original design of what “We the People” did ordain and establish.... Of course, the Court also interprets various laws and statutes, but it's main constitutional purpose is to excercise a negative judgement on laws or actions which transgress constitutional bounds.

Hamilton's argument somewhat involves a slight of hand; one that ends up saying (with a certain amount of cheek) that an oligarchical mechanism exists to protect the popular will. The simple fact is that by establishing the Constitution, the sovereign people delegated their law-making power to Congress which thenceforth represents the sovereign will of the people. But this simple description does not take into account the difference between an axiom and a theorem.

Axioms establish absolute fundamentals without which and outside of which nothing is possible. Theorems are specific propositions existing under and operative only within that conceptual universe established by axioms. In 1789, We the People did not simply delegate our collective power to three branches of government. We certainly did not, as the English did in 1688, decree simply and without more that “Parliament was supreme.” We delegated our powers within a prescribed constitutional order of doing things and subject, most importantly, to the fundamentals of the Bill of Rights. That was an act of axiomatic legislation. From this constitutional perspective, Hamilton's argument is more than a trick. The Court exists to protect the axiomatic will of the People as against subsequent propositions ensuing, supposedly, thereunder.

This explains why the Court is essentially a conservative beast. It does not exist to initiate changes. It does not look forward but back; and, most importantly back to our axioms. This is why FDR complained that the Court was “taking us back to horse and buggy days.” Yeah, so perhaps we should give horses and buggies a second look.

And taking a second look, we can notice that our Constitution and Bill of Rights presuppose a Liberal political philosophy; that is, one that, in the balance between the One and the Many, inclines toward the individual and his freedom of action. This may sound nice, but it has to be remembered that “individual” includes Very Big Individuals who Have a Disportionate Amount of Political and Economic Power. For better and for worse in no other nation was the “liberal idea” given such free reign as in the United States.

I'm not saying that the Constitution prohibits government initiative or regulation, or that it demands unfettered capitalism. Although principles may be stated in pristine simplicity, in actual practice there is always a near infinite amount of variation. But given the essential role of the Court and given our foundational documents it is not surprising that the Court's rulings should have a “conservative” (i.e. Liberal) tilt.

It was precisely for this reason that beginning in the 20th century some jurists began a movement to revamp jurisprudence, so as to make it make amenable to achieving socio-economic change. Thus arose the division between formal (veto prone) jurisprudence and sociological jurisprudence, or as it is often called, “legal realism.” The Big Battle arose, of course, over FDR's New Deal.

Sniffed Justice Mc Reynolds “I readily and, I trust, feelingly acknowledge the duty incumbent on us all as men and citizens, and as among the highest and holiest of our duties, to provide for those who, in the mysterious order of Providence, are subject to want and to disease of body or mind; but I cannot find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States.”

Whatever might be said about the mysterious order of Providence, there is no authority in the Constitution for the government to run a Social Security Administration. And proof of that fact is that when the Court (under pressure) got around to approving Social Security it did so under the “general welfare” preamble of the Constitution. But if that is the logic to be used then “general welfare” becomes an infinitely malleable variable and we might as well have no restrictions at all on what Congress can do.

The most egregious example of “sociological” jurisprudence that I can think of is the Case of Wickard v. Filburn (1941) in which the Court held that a backwoods Ohio farmer who lived miles from anywhere and who grew his own wheat entirely for home consumption was “in” interstate commerce (and therefore could be regulated by the government) because by NOT buying bread produced in interstate commerce he affected interstate commerce as much as if he sold his wheat in interstate commerce.

Although I am very glad for Social Security and think we need more government regulation of private enterprise, the problem with this kind of Alice-in-Wonderland sophistry is that it basically destroys the very idea of law. If words and ideas can be abused in this way, we are left with brute will and that, imo, is not a good thing.

This is why, at least as much as the achieved result of any case, I am concerned about how the “ratio decidendi” -- how the case was reasoned to its conclusion. If the reasoning is honest and fair, then even if I would have reasoned otherwise, I feel I got as good as any of us can expect to get. Verbal thuggery, is another matter.

So... to summarize. In the ever ongoing balance between the One and the Many, or between the Settled and the Needed, the Supreme Court, as it is, serves a very necessary function. Its decisions have never been perfect, and since there are always at least two sides to any issue, they will always offend at least one party. From day to day, I find myself being delighted or outraged. But at the end of the day, I have to ask whether I would prefer an imperfect restraint on popular will or none at all.

No one who is even tepidly social democratic could possible support the Republican agenda, but what the Democrats are doing is reprehensible. Knowing that they will not be able to force court-packing legislation through Congress, they are attempting the next worser thing: witch-hunt conservative justices off the Court so that a Democratic administration can re-pack it with legal realists more amenable to their will. Oh, yes, they may get the rulings they want but they will have completely politicised the Court by making it a steppinfechit for the caprice of the majority. And once the Democrats succeed, the Republicans will follow suit. I would vote for any Republican in order to estop this destructive petulance.

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Tuesday, July 4, 2023

Scumbagging the Second Amendment


The Supreme Court has granted certiorari in United States v. Rahimi, after a ruling by the Fifth Circuit Court of Appeal (Texas), setting aside Rahimi's conviction, under 18 U.S.C. § 922(g)(8), for possessing a firearm in violation of a civil restraining order based on a judicial finding that he represented “a credible threat to the physical safety of” his domestic partner.

Rahimi asserted that his conviction was invalid because he had a constitutional right to possess the weapon in question. He argues that § 922(g)(8) is unconstitutional on its face.

That Mr. Rahimi is a poster boy for the type of scumbag no one in their right mind would want possessing a firearm is beyond dispute. His record includes a lengthy criminal history the most recent episodes of which included drug dealing, burglary, two assaults on women with a firearm, the latter of which was accompanied by brandishing a gun, and firing it into the air while arguing with a potential witness. For these accomplishments Rahimi was convicted and sentenced in a Texas state court. When he gets out, he will never be allowed to possess a firearm. Nevertheless, the Department of Justice decided to pursue Mr. Rahimi on federal charges.

On the first appeal from his federal conviction, the Fifth Circuit rejected Rahimi's constitutional claim. The court ruled, that under the “two-part balancing test” in use at the time, Rahimi's rights were “outweighed” by the compelling state interest in maintaining the peace, tranquility and safety of the realm.

After Rahimi was packed off to prison but, before his judgement was final, the Supreme Court decided N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, (2022), __U.S.__, 142 S. Ct. 2111, which changed the Second Amendment legal landscape. Under Bruen a person has a presumptive right to posssess weapons in “common use” among the public, and it is the government's burden to prove that the restriction or deprivation of the right is justified by some analogue in the “history and tradition” of the Second Amendment. Rahimi thereupon mounted a second challenge to § 922(g)(8) and, this time, “in light of Bruen” the Fifth Circuit reversed.

Needless to say, the anti-gun lobby -- which has finally stopped making a secret of its desire to abrogate the Second Amendment -- has raised a hutesium et clamor against a ruling that will cruelly subject the country and its millions of innocent children to the bloody rack and ruin of gun violence. Not only is Rahimi's scumbaggery the main ballast of their argument, but in a perverse way he has become the anti-hero of their cause.

However, a facial challenge to a statute considers only the text of the statute itself, not its application to the particular circumstances of an individual. The question properly before the Fifth Circuit was whether, § 922(g)(8), as written and in abstract principle, passes constitutional muster. Of course, the law would not be the law without there being a wrinkle and, as written, § 922(g)(8) is something of a clunker.

That statute prohibits possessing a firearm in violation of a civil protective order. The order must have prohibited stalking or threatening a domestic partner (1) based on a finding that the person “represents a credible threat to the physical safety” to said partner OR (2) “explicitly prohibits the use, attempted use, or threatened use of physical force against such” said partner. In other words, § 922(g)(8) can be violated without there having been any finding of “dangerousness.”

This second condition was so obviously flawed that the Fifth Circuit had previously held that it contained an “implied” finding of dangerousness. (United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002).)   As thus patched up, section §922 (g)(8) rests on a civil judicial finding that the subject of the order represents a danger to a particular person.

A well regulated militia... the right of the people to keep and bear arms...

Interestingly enough, instead of asking whether such a finding constituted a sufficient predicate for depriving Rahimi of his right to bear arms, the Court of Appeal began by asking whether Mr. Rahimi was part of the “people” to whom the Second Amendment refers. At this point my ears started to burn. Yes indeed: who and on what basis gets to decide whether a person is part of the national community?

By phrasing the question in that manner the Fifth Circuit transubstantiated the issue of “my rights” into the more primary existential question of whether “I” am part of “Us.” That it seems to me is a rather important question, especially when we recall the lamentable history of regimes that have excluded categories of people from their national community.

There is no question that a member of “we the people” can disenfranchise himself by his conduct. The concept is known as “civil death.” But our Constitution provides specific means and limitations on how that is done; namely, after conviction by jury trial with assistance of counsel. It is not the conviction that causes a man to forfeit his membership in the the community but rather the decision of his fellow people. In civilian countries like France or Germany, it suffices for agents of the State, professionally trained judges, to make the decision as to whether someone should incur civil death and thereby be excluded -- for a time or forever -- from walking freely among fellow citizens.

But neither England nor the United States have ever followed the civil law. In our tradition a man's right as “one of a people” can only be taken away by the people, and the Sixth Amendment specifies that this is to be taken literally. As Justice Scalia put it, “Judges, it is sometimes necessary to remind ourselves, are part of the State -- and an increasingly bureaucratic part of it, at that” (Apprendi v. New Jersey (2000) 530 U.S. 466, 498.) "It is the jury that functions as circuit-breaker in the State’s machinery of justice." (Blakely v. Washington (2004) 542 U. S. 296, 307.)

Now, it is true that the overwhelming majority of cases are disposed of by plea. But that does derogate from the principle at issue. Every plea must be based on a voluntary and knowing waiver of the process accorded. Anyone who wants to be judged by his peers, face to face, has the absolute right to appeal to the circuit breaker.

This is yet another example of the ways in which the Bill of Rights enshrines not only individual rights but the right and power of popular control over government and over our own destinies. No judge, magistrate, agent, bureaucrat, or lackey can exclude you; only the people can say that you are no longer part of the people. You can't get more fundamentally democratic than that.

Of course, a popular decision while a necessary condition is not a sufficient one. In addition to a determination by jury, the decision must accord with substantive standards and due process of law. In a word, there must be good cause and reason for finding someone unworthy to participate in the community of the free. The shorthand for all of this is the well known truism that a person may loose his rights through and upon conviction for a crime or for a certain class of crime. Nevertheless, it is important to bear in mind what lies behind the shorthand.

The Department of Justice would have it that a person can be excluded from the national community and the rights shared therethrough, by the say-so of a civil order made by an agent of the state, pursuant to no specified criteria or standard of proof. The only contingency is that the subject of the order receive “actual notice” and be given the opportunity “to participate.” What this boils downs to in practice is a showing that notice was mailed to him at his last known address.

To justify this sort of regime, the Government pointed to various historical analogues in English and Colonial law. The first of these was the Statute of Northampton, 2 Edw. 3, (1328), and various copy-cat statutes, which prohibited “riding about armed to the terror of the King's subjects” (ne de chivaucher ne de daler arme). As I have written elsewhere, what the statute actually prohibited was using arms to terrify the people. The statutes in question invariably resort to phrases such as “with force and arms,” or “affrayers,” or “breakers of the peace,” or “go armed offensively.” As such, these statutes (English and Colonial) presupposed a primary right to lawfully bear arms, and the universal acceptance of this right cannot in good faith be doubted by anyone familiar with the historical and legal record from King Alfred (850) to James Madison (1791). As stated by the Fifth Circuit,

“In substance, the early “going armed” laws that led to weapons forfeiture are not relevantly similar to § 922(g)(8). First, those laws only disarmed an offender after criminal proceedings and conviction. By contrast, § 922(g)(8) disarms people who have merely been civilly adjudicated to be a threat to another person.”

The Government's second argument relied on various English and Colonial laws which had authorized the seizure of weapons from “dangerous” classes of people. Or, as the Government summarized it, “persons and disaffected persons perceived as threatening to the crown.” The difficulty with this line of argument is that the persons deemed “dangerous” were either Protestants (under Charles II and James II), or Irish and Catholics (after the Glorious Revolution) or slaves and Indians (in the Colonies). The perversity of the Government's argument is truly astonishing. If anything, the Second Amendment was designed to forestall precisely those kinds of status-based forfeitures.

Lastly, the Government sought to rely on various surety laws by means of which an individual who could show that he had “just cause to fear” that another would injure him or destroy his property could “demand surety of the peace against such person.” If the party of whom surety was demanded refused to post surety, he would be forbidden from carrying a weapon in public absent special need. The similarity between § 922(g)(8) and surety laws is obvious. Where the analogy breaks down is that surety laws did not confiscate or prohibit possession of the weapon itself. The Government's argument that the right to possess arms can be based on a civil finding of dangerousness; and, therefore, if a finding of dangerousness is sufficient to condition your right it ought to be sufficient to abrogate it as well.

The Justice Department is hoping that the outrageousness of Rahimi's conduct will distract and obscure the pernicious principle being asserted. In seeking Supreme Court review, the Government has sought to portray the Fifth Circuit's ruling as one that would hog tie the authorities from taking any reasonable measures to counteract a patently dangerous and, indeed, deranged person from committing further gun violence. Needless to say, the Anti-Gun activists and media followed up with the appropriate rhetoric qua reportage. Since it makes for such salacious reading we might as well quote the Government's brief in full:

“... Zackey Rahimi was a drug dealer who mostly sold marijuana and occasionally sold cocaine. In December 2019, Rahimi and his girlfriend C.M. had an argument in a parking lot in Arlington, Texas. C.M. tried to leave, but Rahimi grabbed her wrist, knocking her to the ground. He then dragged her back to his car, picked her up, and pushed her inside, causing her to hit her head on the dashboard. Realizing that a bystander had seen him, he retrieved a gun and fired a shot. In the meantime, C.M. escaped the car and fled the scene. Rahimi later called her and threatened to shoot her if she told anyone about the assault.

“In February 2020, after giving Rahimi notice and an opportunity for a hearing, a Texas state court granted C.M. a restraining order, which was valid for two years. C.A. ROA 12-18. The court found that Rahimi had “committed family violence” and that such violence was “likely to occur again in the future.” . The court accordingly prohibited Rahimi from committing family violence and from threatening, harassing, or approach ing C.M. or her family. . The order also suspended Rahimi’s handgun license, prohibited him from possessing a firearm, and warned him that possessing a firearm while the order remained in effect may be a federal felony. Rahimi signed an acknowledgement that he had 'received a copy of this protective order in open court at the close of the hearing in this matter.'

“Rahimi, however, defied the restraining order. In August 2020, he tried to communicate with C.M. on social media and approached her house in the middle of the night, prompting state police to arrest him for violating the order. C.A. ROA 218. And in November 2020, he threatened another woman with a gun, leading the State of Texas to charge him with aggravated assault with a deadly weapon.

“Rahimi then participated in a series of five shootings in December 2020 and January 2021. First, after someone who had bought drugs from him “started talking ‘trash’ ” on social media, he went to the man’s home and fired bullets into it using an AR-15 rifle. The next day, after colliding with another vehicle, he alighted from his car, shot at the other driver, fled, re- turned to the scene, fired more shots at the other car, and fled again. Three days later, Rahimi fired a gun in the air in a residential neighborhood in the presence of young children. . A few weeks after that, a truck flashed its headlights at Rahimi when he sped past it on a highway; in response, Rahimi slammed his brakes, cut across the highway, followed the truck off an exit, and fired multiple shots at another car that had been traveling behind the truck. Finally, in early January, Rahimi pulled out a gun and fired multi- ple shots in the air after a friend’s credit card was declined at a fast-food restaurant.”

“Police officers identified Rahimi as a suspect in those shootings and secured a search warrant for his home. A search of his room uncovered a .45- caliber pistol, a .308-caliber rifle, pistol and rifle magazines, ammunition, approximately $20,000 in cash, and a copy of the restraining order. [ as a result of which he was indicted for violating 18 U.S.C. 922(g)(8]”

What this stunning narration glides over is the fact that prior to be charged with the federal offence, Rahimi had been convicted on state charges of “terroristic threat of a family/household member, discharge of a firearm in certain municipalities, and family violence assault causing bodily injury.” (see United States v. Rahimi (5th Cir., June 8, 2022, No. 21-11001) [pp. 3 fn. 2].) After conviction and sentence on these state charges, Rahimi admitted and pleaded guilty to the federal charges, reserving the right to appeal the constitutionality of the federal statute. The federal district court then imposed a prison term to run consecutive to the state sentence.

In his first federal appeal (the June 8, 2022 case, cited above), Rahimi argued that the state and federal sentences should run concurrently because, after all, it was all part of his singlular deranged and dangerous propensity. The Fifth Circuit rejected this claim on the ground that “the pending state charges are not a part of the same course of conduct as Rahimi's possession of a firearm in violation of a restraining order”  inasmuch as federal offence arose two and 12 months after the state prior state charges. (United States v. Rahimi (5th Cir., June 8, 2022, No. 21-11001) [pp. 4].) At the same time the Fifth Circuit rejected Rahimi's constitutional challenge.

What the Government elides gracefully is that there was plenty of time for the Texas courts to issue an order restraining Rahimi from possessing a firearm. In fact, they had done so and if Texas did not do so again it was because Rahimi was being packed off to prison in any case. Despite all the tears and rending of garments, this was not a case where the authorities were rendered helpless in their attempts to control an armed, violent and dangerous lunatic. The good and peaceable citizens of the United States and the Great State of Texas can sleep tight at night knowing that Rahimi's dangerous are under lock and key.

What remains then is a facial challenged to a criminal statute that is based on the deprivation of a constititional right issued by a civil magistrate who decides that a person represents a danger to another. That's it. No further requirement or qualification. In defending 922(g)(8), the Government is arguing for the deprivation of a constitutional under a totally undefined standard of determination.

As Judge Hoo, noted in his concurring opinion, “civil protective orders are too often misused as a tactical device in divorce proceedings—and issued without any actual threat of danger. ... Judges may face enormous pressure to grant civil protective orders—and no incentive to deny them.” That is true enough, but the situation is far worse.

Because, by definition, a "danger" is a possible or, to some degree, a probabable harm, a "danger" can always be said to presently exist and is impossible to deny. Authorities intuitively understand this which is why they speak of "potential dangers," which sounds like it is saying something more when, in fact, it is saying less. Unless tethered to enumerated and specific objective criteria, a finding of dangerousness is not only easily made but, worse yet, is no more than a self-certifying excoriation. The inherent capriciousness of such findings make them the favourite tool of tyrants. It is precisely for that reason that the Government and gun control activists wish to mesmerize people with “dangers.” This is the same Administration that has a track record of exerting government pressure to censor “dangerous” or “hateful” speech by gagging or cancelling social media accounts. Once they establish the principle that constitutional rights can be taken away through such vague and facile “findings” liberty ceases to be guaranteed. This is not the beginning of a slippery slope, it is the end of it. It is nothing a true and honest liberal in the mold of justice Douglas, Brennan or Black would have countenanced.

Although the Fifth Circuit opinion did not mention Apprendi or Blakely the way it initially framed the question indicates that it clearly had those cases in mind. The Bill of Rights presupposes the loss of the rights it protects, but it does so by the means it prescribes.

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