I've heard it bandied about a lot lately from critics of the government bailouts (whose ranks I have joined since the first hints of a bailout) that bailing out banks and car companies only serves to socialize the loss and privatize the profit.That is, when the bank or car company made money, they kept the profit, but when they lost money, we had to pay for it.
It seems obvious to me that when explained this way, the bailouts would seem to encourage risk taking by these companies.If things go bad, there's no down side for them, so why not risk it all every day?Supporters of the bailout say that these companies are too big to fail, and view the bailouts as isolated events that did not shape the course of events preceding them.Except that this is not the case.Chrysler has a fine history of getting bailed out, so there was precedent.
We needn't even look to the close association of certain politicians with certain financial companies to realize that bailing out banks as a policy will lead to more bad risk taking by the banks.
But I'm no financial expert, so I can't really go much further than that simple analysis that is neither unique nor deep.If you support bad behavior, you tend to get more bad behavior.
What is more interesting to me is how this policy of supporting bad behavior as an international policy has affected international law.
The Treaty of Westphalia is often regarded as the precursor to modern laws of war.From this international agreement developed the modern ideas of civilized wars.From this time comes the idea that wars are fought by governments and the people in the country are innocent spectators who deserve protection.
This sounds very nice, doesn't it?Kings and other despots controlled most of the countries of Europe with little control by the people. Wars were waged using conscript armies and the people suffered though they had little say in whether to engage in the war.Women, children and other noncombatants were now considered innocents who should be spared the ravages of war.
What a pleasant thought, to spare the lives of noncombatants.It warms the cockles of one's heart.Little children are now safe and do not pay for the sins of the monarch and his armies.
It's kind of like how nice it is to think of all those poor children whose families who bought houses they couldn't pay for and now they're not being thrown into the streets because we tax payers will take care of that loan for them.How sweet.
But these laws of war don't work for their intended purpose."Innocents" are still suffering during war, as they must.In fact, wars have gotten more and more deadly for these innocents, largely because of advances in weapons technology, but also because of lack of advancement of human nature.The Armenians were not saved by the laws of war.The Jews suffered tremendously.At least in WWII we tended not to be excessively bothered by the niceties of being afraid to bomb cities and thus ended that war a mere four years after the United States commenced fighting back openly.
In the War Between the States and even more in the Second World War, the United States demonstrated that the only moral way to wage a war is through total war.When Sherman slashed through the southern states he quite openly declared that his intention was to destroy everything in his path and to expressly make the people of the south suffer for waging war.In WWII, Curtis LeMay's bombers destroyed entire cities, fire bombing Tokyo and other major civilian centers with the knowlege that many more civilians would be harmed than any industrial capacity.This was quite intentional.
Is there any real question as to whether we were justified in burning Atlanta or firebombing Tokyo?Perhaps there is a question, but the answer is provided by the results of the war:We won and the war was shortened. The New York Times reported at the time, "Maj. Gen. Curtis E. LeMay, commander of the B-29s of the entire Marianas area, declared that if the war is shortened by a single day, the attack will have served its purpose."
What Sherman and LeMay understood is that it is the people of a warring nation that gives that nation its ultimate power.
Since then, we've seen how dictators have come to power and stayed in power by cowing their own people.It's popular to think that unseen hands of the CIA can topple a foreign government but this is a myth of novels and movies that seems to have life in the real world only in the newspapers and political tracts.In real life, such sordid manipulations are largely ineffective unless they are backed by the people in those countries.Saddam Hussein could not be toppled.Castro is still in power.There are no instances of a CIA backed coup succeeding without people in the country wishing the coup to succeed.
So if a nation's government is ultimately controlled by its people, then why have the laws of war since the Treaty of Westphalia been protecting the people from the worst ravages of war?
Now we have even governments claiming protected status.Pakistan has been protected from its shielding of Al Qaeda.Okay, maybe "shielding" is a bit overstating the matter.In fact, Al Qaeda has conquered vast territories in Pakistan.The Pakistani government has had no control in those areas yet has insisted that we are not allowed to deal with Al Qaeda there.
The Saudis, the Pakistanis, the Syrians, and so many other third rate two-bit nations want to claim the benefits of statehood and sovereignty, but don't bother with the responsibility of being peaceful states.They allow, if not encourage, rogue elements or protected elements to wage war on us and our civilization.
And the people of Pakistan, Afghanistan, and these pathetic places to live are not held accountable for allowing these governments to rule them.
Before we invaded Iraq, what was the motivation for an Iraqi to oppose Saddam Hussein?If they fought him, they would die horrible deaths, and their families would likewise suffer horrid fates.It's much easier to just go with the flow and hope to not stand out and get bad treatment from Saddam and hope that someone will come rescue them.
Suppose bank CEO's knew that if they lost billions of dollars that they and their families would have to live in poverty, do you think they would tend to take unreasonable risks?Suppose bank CEO's were given golden parachutes even if they led their business to complete ruin, doyou think they would take unreasonable risks?Even without government bailouts, no CEO will ever live in poverty.His or her millions or billions of personal assets will be protected even without golden parachutes or government bailouts.
Suppose the people of Afghanistan knew that if they supported Al Qaeda or allowed them to operate in their country that they and their entire families would be reduced to mere impurities in the glass that their nation is reduced to, do you suppose they would tend to take more actions to encourage good behavior by Al Qaeda?
Instead, they know that they will be treated with love and affection and the United States will come and pave roads and build infrastructure.It's "The Mouse that Roared" writ large.They have no downside.
We will not win the war on terror until we change the equation.We have to destroy the enemy's source of power.Since their technology is limited, it couldn't be any clearer that their source of power is controlling people.Until populations fear our wrath more than the immediate threats from the terrorists, we will always be fighting a losing war.We cannot sustain the costs of a war where we spend hundreds of millions times more than the enemy.They can continue to wage a low cost war and simply wait for us to run out of money and bankrupt ourselves – and that time seems to be coming sooner rather than later.
But I suppose many Americans now would think that some unknown universal force would bail us out.
Winning hearts and minds to win a war sounds lofty and might work for a limited time as a strategy for one specific geographical area, but in the long run it will not win.It will take too many generations for these impoverished areas to develop economies and cultures that can create the type of wealth that can recoup the costs of the war. At the very least, we should wait until we win the war before we start our second generation of the Marshall Plan to rebuild the Middle East. When we are finally bankrupted, the enemy will simply demonstrate again that these people have more to fear from them than from us and we'll be at their mercy.The peoples of these countries will collect all the benefits of war against us, and little of the horrors.
The Westphalian Order was always a well-intended bad idea.It is now a bad idea that may prove our ruin unless we find a Curtis LeMay or William T. Sherman to save us.
A law enacted in 1999 has been struck down by the US Supreme Court today as an overbroad infringement of free speech. In United States v. Stevens (discussed here) the court said that the law criminalizing possession of depictions of animal cruelty goes too far. It specifically said that there is already laws forbidding cruelty to animals in all fifty states and that there is no history in our law of outlawing all depictions. The Chief Justice also ruled that there is no reason to allow an unconstitutional law based on assurances from the government that they would not abuse the law.
This is an excellent opinion and is in the best traditions of American jurisprudence. That's pretty unusual nowadays.
To celebrate, I'm posting a depiction of animal cruelty. The government presumably would have used its discretion in not prosecuting me since bull fights are art, but before now I would simply have had to trust them. I'm not big on trusting prosecutors.
This is not for everyone, so don't watch if you don't want to see a ferocious bull die. (It may not be safe for work if your boss is the government or a sissy!)
Bull fights are like a dance. Strangely, the ferocious and powerful bull is the woman, and the guy dressed in tight pants with puff balls on his toes is the man. For a great treatise on bull fighting, I recommend Ernest Hemmingway's "Death in the Afternoon."
Some may be squeamish, but even Hemmingway noted that the reaction is individualized. Some like this, some don't. I admire the bull who keeps attacking even as he dies. Don't feel bad for the bull, this is what he lives for, and he's going to be eaten anyway, so why not allow him to die fighting? And don't forget that even though the fight is balanced against him, the attraction to the sport is that the bull does sometimes win.
Whenever I miss a practice question for the bar, my usual reaction is, "Oops! How did I miss that point or issue of law?"
But Constitutional Law can be different. Whenever I miss a question and the answer has to do with fundamental rights like freedom of speech or assembly, I get an entirely different reaction. Shame.
I don't know if I've been jaded by law school but when I realize I didn't stick up for freedom of speech because I was erroneously thinking there was some oddball exception that wasn't really there or didn't apply, then I wonder if my natural cynicism towards the law has increased or if I really have forgotten what is right and wrong.
But the cure for this is more studying. So that ends this rant so I can resume such duties.
I just finished listening to this week's "Uncommon Knowlege" and the interview with Judge Laurence Silberman. "Uncommon Knowlege" is a very good series by Peter Robinson, where he interviews people very intelligently regarding politics from a much more interesting perspective than the typical leftist schlock on tv.
In this week's interview I liked the discussion of the Second Amendment, but I was more fascinated by the final segment where Silberman gets thoroughly grilled regarding so-called "originalism."
Silberman's arguement goes like this: An originalist properly takes not only the meaning of the Constitution and laws as originally written, but also as it has developed over the years.
But what happens when decisions were wrongly decided? For instance, stare decisis holds that once a decision is made, it should not be looked at again. This is a fiction, of course, the law is filled with examples of judges deciding that past decisions are wrong. There is a classic formula addressed by Sandra O'Connor in Casey where a judge is to weigh whether to reject stare decisis. The problem with such formulas is that they are terribly subjective and judges are well known for shoe horning their opinions of an outcome into such pre-existing formulas.
"The job of liberals is to keep making mistakes and the job of conservatives is to keep them from being corrected." G.K. Chesterton as quoted by Peter Robinson
Silberman seems to personify that way of thinking. He thinks the purpose of an "originalist" is to "stand athwart efforts to decide cases in the future in the form of an evolving Constitution."
The obvious problem is that this creates a certainty that the Constitution and our laws will continue to lurch only to the left and never be corrected. He gives the example of capital punishment. There are many progressive jurists who would dearly love to declare capital punishment unconstitutional. As the law stands now, this is not possible according to current theories of the "cruel and unusual punishment" clause of the Eighth Amendment. But the progressives have nothing in their philosophy from changing that interpretation. Once it is changed, "originalists" such as Silberman would refuse to correct that incorrect decision.
It's a loser's game. Silberman even mocks so-called libertarians whom he characterizes as judicial activists in the other direction.
Personally, I reject this loser mentality. Such a philosophy to hack back progressivist creep should be called "judicial correctivism." Roe and Casey should be overturned. The Commerce Clause should be again restricted, and the meaning of the Tenth Amendment should be restored.
Well, here's my opinion. I don't like you. I don't like your police officers when they stand on a street corner and harrass people walking by, yelling out insults and commands that are entirely out of place.
I don't know who you think you are, but there's this idea in Texas and most of this country that the people are sovereign, that the police are our servants. Perhaps you don't understand that very well.
I'm not worried about the "damage to the organization" or the erosion in "public trust." I really don't care. The way to get public trust is to have a professional force that looks out for the safety of the people, not the glorification of their own bully egos.
And if you want to come and get me for speaking my mind on this topic, go ahead and try.
The death penalty is unfair. Recent scientific
evidence has proven that people who were executed or still on death row were and
are innocent of the crimes they're accused
of.
So say those opposed to the death
penalty. Not being a geneticist or expert in DNA, I will accept such claims of
evidence on their face. I have no way to refute
them.
But the conclusion that the death
penalty is unfair is incorrect.
The correct conclusion is that the death penalty
was unfair, but because of science and geneticists, it cannot any longer be
thought to be unfair when it is applied. Now we can know with certainty, no
longer simply "beyond a reasonable doubt" that the guilty party is indeed
guilty.
I have no remorse for those
guilty of capital crimes.
Another
argument against the death penalty is that it is inhumane or immoral. This is
not a very good argument at all, it is an emotion. When a person commits a
capital crime by taking another's life, or otherwise as defined by the
legislature, then no civilized person should have pity for them. This is also
an emotional answer, but that is all that such arguments
deserve.
The only remaining argument in
opposition to the death penalty is that it is unfairly applied to mostly the
poor or minorities. The correct solution to this issue, whether real or
perceived, is to apply the death penalty more liberally when genetic evidence
removes all doubt of guilt.
The
popular refrain that the death penalty is outmoded flies in the face of facts
and modern science. We the people can punish murderers and other criminals by
removing them from the ranks of the living with clearer consciences than ever
before.
Okay, I'm studying for final exams and I have a
few general comments about academia.
1. Some academicians seem to have a strange idea
that it's not their responsibility to teach. These professors seem to take a
perverse pride in not teaching the subject matter, instead they think that good
students will learn on their own, and that only poor students require teaching.
They couch this attitude in comments like "we want you to think, not
regurgitate" and other nonsensical platitudes. This fosters laziness on their
part. This is not a law school phenomenon, it is true at all universities, in
all fields I have seen.
1.a. The goal
of higher education is not to educate, it is to foster the reputation of the
university. Universities gain reputation by having their graduates succeed,
make money, and contribute back to the school. Contributions include money, but
also political and academic actions. Whether students learn is incidental. In
contrast, classes I've taken in private industry or even in the Marine Corps
have been as complicated, but the emphasis was on every student learning all the
material rather than on creating a curve of performance. Instructors in those
schools are not interested in grading curves, they are concerned only that the
student knows all the material. In academia, the fact that students know
material is incidental to the purpose, it is the student's responsibility to
somehow get the education despite the institution's lack of structure in
teaching.
2. Law school is about ten
times easier than my undergraduate mechanical engineering studies. I'm not
saying that this means that I'm going to get A's. Performance is not
necessarily a result of ease of the material, but the subject matter is not even
close to being as complex. Law school professors seem to think it is the most
complicated reasoning mankind can know. I don't think any of them ever studied
differential equations or fluid
dynamics.
3. Law school professors
take great pride in claiming that their subject matter is very complex and takes
a lot of deep thought. In reality, "deep thought" is their way of saying that
the law is based mostly on whims masquerading as legal fictions, and the purpose
of law school is not so much to teach the law, but to teach the lore and history
of past whims. This allows lawyers to use the whim of choice in their legal
arguments for their clients, in the hope that the particular judges that hear
the case will use the whims that support their
cause.
4. First year law courses are
mostly a matter of rote memorization of hundreds of rules. If you know the
rules, you can raise the arguments in your essay questions. Just don't tell the
professors that this is the case, it will hurt their feelings!
5. Most of my professors in law
school have been nothing short of brilliant, despite the hackneyed system that
they have inherited from our academic culture.
President Bush has nominated Meirs to the Supreme
Court. This is cause for alarm, Bush like his father has a terrible track
record for these things. I think she will be horrible, but the moonbat ravings
against her have me thinking twice. The strongest arguments against her have
been focused not on her ideology but on the fact that she went to SMU for law
school. In fact both Ann Coulter and Virginia Postrel have revealed themselves
to be nakedly snobbish and tell us that only someone who went to an Ivy League
school should be on the Supreme Court. For some reason this is now part of the
job description in their minds.
A
friend of mine had a similar argument when discussing her merits as a justice.
He told me that being a Supreme Court justice requires an intelligence well
beyond what he, or even I possess. Of course he mistakenly believes he's
smarter than me, so I had to take a bit of a liberty in how I said
that.
Both these arguments suffer from
what I call the Einstein's math fallacy. Einstein is often called a brilliant
man and I don't doubt his intellectual abilities. But Einstein was a dunce
about many things. Just because he was good at math doesn't mean he was right
about everything, or that his thinking was infallible. You don't need to be
Albert Einstein to know that 2 plus 2 is four, and had Einstein argued that it
was five wouldn't make it true.
The
same goes with the law.
Law is not complex. Efforts to complicate it
serve only one interest group, lawyers. There are a lot of complex issues in
law and a certain amount of sense is needed to argue cases, and determine how to
bill your client, but for the most part the challenges of becoming a lawyer are
a result of law schools creating an elitist system to become a lawyer. You
can't practice law until the law schools and the Bar say you can. Lawyers have
a vested interest in keeping the law complicated, convoluted, and easily
manipulated. Lawyers create a system that allow OJ Simpson to be acquitted,
silicon breast implants banned, and tobacco growers
enslaved.
In this malconstructed world
of legal arguments, the truth is that the issues are rarely that complex. As a
judge, you don't need to know how to create arguments to confuse and muddle
justice, you only need to know right from wrong and cut to the heart of the
matter.
Law schools don't teach wisdom.
Ivy league law schools don't teach right and wrong. They teach how to create
and maintain labyrinths of logic so that either side in a legal dispute can win.
To a lawyer, justice goes to the best arguer, not the best argument. And
seemingly to Coulter and Postrel, only those attending an Ivy League law school
are clever enough to argue well.
But
what have Ivy Leaguers given us? People who think that free speech is
sacrosanct for pornography but punishable for political speech. People who
think that property rights extend only to those who convince city governments to
give them other people's land. People who think that equal opportunity means
that companies should be forced to hire less qualified minorities, and that
"minorities" really mean only those who aren't truly minorities, but includes
only the largest distinguishable groups (Hipanics benefit as a minority while
smaller groups like the almost otherwise indistinguishable Portuguese are
not).
The main requirement to be a
Supreme Court Justice is not to go to an Ivy League school, it is to be able to
know right from wrong and have the moral backbone, the dedication to truth, and
the ability to understand that freedom means less government intrusion, not
more.
I don't know if Meirs will be a
good Justice, but only an Ivy League snob can put forth the absurd argument that
only an Ivy Leaguer is possibly qualified for the job.
Here is a dissenting opinion regarding the Second
Amendment from the Ninth Circuit Court of Appeals. It is actually written in
strong, understandable, mostly jargon-free English. It needs no further
comments from me, You'll enjoy this, and it gives me hope for the future of our
nation, and lawyers in general.
UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
Russell Allen et al,
Plaintiffs-Appellants,
v. Mary V. King, et al,
Defendants-Appellees
No.
99-17551 D.C. No. CV-99-04389-MJJ Northern
Distsrict of California, San
Francisco
Filed April 5,
2004
Before: Arthur L Alarcón,
Diarmuid F. O'Scannlain, and Ronald M. Gould, Circuit
Judges
Order
(I've
excised the order, and skipped straight to the first
dissent)
KLEINFELD, Circuit Judge,
dissenting from denial of rehearing en
banc:
I respectfully dissent. I
join in Judge Gould's superb dissent, which explains coherently and most
admirably why the Second Amendment guarantees an individual right to keep and
bear arms.
Our court has erased
10% of the Bill of Rights for 20% of the American people. No liberties are safe
if courts can so easily erase them, and no lover of liberty can be confident
that an important right will never become so disfavored in popular or elite
opinion as to being discarded like the Second
Amendment.
I have spelled out in
great detail why our court's view of the SEcond Amendment is indefensible, in my
dissent from denial of rehearing en banc in Silveira v. Lockyer. Judge Gould
has graciously noted some of the points in that dissent, and I will not restate
them here.
Our court and the Fifth
Circuit take opposite views. In United
States v. Emerson, the Fifth Circuit reads the
Second Amendment to establish an individual right to keep and bear arms. Our
court reads it not to. Our court takes what to me is a position verging on
droll legal humor, that the right is a "collective" right belonging to state
government, meaning that it is enforceable only by the state, even when the
state is the violator.
Whether the
Second Amendment guarantees an individual right is more likely to affect the
outcome in this case than in
Silveira,
the challenge was to California's ban on assault weapons. Reasonable regulation
of the individual right guaranteed by the Second Amendment might well have led
to the same result, no relief, as the result reached by the panel using the "no
individual right" argument. In this case, by contrast, the result might well
have been different if we had not erased the Second Amendment. The ordinance at
issue, subject to narrow exceptions, criminalizes any and all possession of
firearms on county property. The case before the panel was about apparently
law-abiding persons wanting to hold a gun show at a
fairgrounds.
Some people think
that the Second Amendment is an outdated relic of an earlier time. Doubtless
some also think that constitutional protections of other rights are outdated
relics of earlier times. We The People own those rights regardless, unless and
until We The People repeal them. For those who believe it to be outdated, the
Second Amendment provides a good test of whether their allegiance is really to
the Constitution of the United States, or only to their preferences in public
policies and audiences. The Constitution is law, not vague aspirations, and we
are obligated to protect, defend, and apply it. If the Second Amendment were
truly an outdated relic, the Constitution provides a method for repeal. The
Constitution does not furnish the federal courts with an
eraser.
(The rest of the
document, both the decision and the dissents are worth reading. Go to
this
link to download a pdf
file of the decision.)
There is no longer any pretense that the Supreme
Court has any regard for law or reason. They have now followed the lead of both
houses of criminals, er congress, and the domestically deficient executive
branch and have outlawed political
speech.
This is the most outrageous act
perpetrated by our government since Lincoln robbed us of our right to
self-determination. The government has now made it illegal for us to criticize
it and it's clear that there is no longer anything we can do about it. Our
masters will keep us in our place.
Let's say that we did manage to oust enough
members of congress to repeal this law. It can't happen since we can't
criticize them, but let's just pretend. If we did vote the bums out, why would
the new congressmen then vote out the law? They'd have no incentive to do so,
because now they would be the entrenched power, and history has shown that the
public can only stay outraged for a limited time. After a while their anger
would subside.
Besides, it seems that
enough people think this gagging of lady liberty is a good thing. But the whole
point of the Bill of Rights and the Constitution is to protect us from the
majority. Without any protection, we will perpetually be at the mercy of
whatever popular idea comes into the minds of our masters, the majority. By
gagging us, they have the abilty to retain their
overlordship.
Now, let's imagine that
somehow, someway, we enact an amendment to the Constitution that says, "The
people have the right to unfettered political speech, and this time we mean it."
What makes anyone think that the Supreme Court would notice? They no longer
consider themselves bound by the law or the Constitution. They have somehow
decided that their whims are the law of the land, regardless of the written
word, or clearly intended meaning that they at one time were imagined to
safeguard.
If somehow an Amendment to
the Constitution were created, voted in by congress and 3/4 of the states that
the Supreme Court didn't like, I would not doubt for one minute that they would
declare the Amendment to be unconstitutional. Theoretically, since it IS the
Constitution, this shouldn't be possible. Yet, they now refer to laws of other
countries to justify their decisions, they make things up, and ignore words
written very plainly that contradict their
whims.
Antonin Scalia mocked his
integrity challenged peers by asking how they see fit to permit virtual child
pornography yet not political speech. Pornography should be protected I
suppose, but it is of very little consequence in the larger scope of things.
Political speech, however, is the heart and soul of our freedom and safety.
Souter and O'Connor along with Breyer, Stevens, and Ginsburg should be impeached
and thrown out of their office. Their actions are unconscionable and they have
now proven without doubt that they are enemies of our
freedom.
Al Qaeda can only blow things
up and there is no chance that they will have much long term impact on our
safety. We must fight them and kill them wherever their hideous ideas and
culture prosper, but there is no doubt that they will in the end be
destroyed.
I wouldn't put these
traitors on our Supreme Court on the level of Al Qaeda. They are far worse. It
appears to be their intent to destroy everything that makes our freedom
possible. They pander to foreign governments and laws, ignoring our own, and
they seek to gag us from speaking freely, even truthfully, about our other
enemies in Congress. At the most important time for us to speak prior to the
time when we are able to decide on their fates, our masters have decided that we
are no longer free, we are subordinate to the continuance of their
reign.
