The Official Blog Of Edward Cline

Month: May 2014 Page 1 of 2

Shutting Us Up For Our Own Good

You
can’t claim that liberals and other statists aren’t industrious. They are
tirelessly diligent in their quest to find more ways to infringe upon or
abridge our freedoms.
Many
of our freedoms are embodied in the Bill of Rights, and have been regularly targeted
for amendment or excision, from gun ownership, to freedom of assembly (or
association), to freedom of speech vis-à-vis
criticizing Islam and campaign finance law restrictions. No right today is
sacrosanct or beyond the government’s wish to curtail or abolish.
Only
just recently, Senate Majority Leader Harry Reid (D-NV), in the wake of his
defeat at the Cliven Bundy Ranch in Nevada, introduced a bill to abridge
political speech. Breitbart’s
Big Government
reported on May 18th:
On May
15, Senate Majority Leader Harry Reid (D-NV) announced the Senate Judiciary
Committee will hold a hearing on June 3 on amending the U.S. Constitution to
limit political speech. If ultimately adopted, it would mark the first time in
American history that a constitutional amendment rescinded a freedom listed as
among the fundamental rights of the American people.
The proposed amendment was
introduced by Sen. Tom Udall (D-CO) as S.J.R.
19
 and if ratified would become the Twenty-Eighth Amendment. It
provides in part that “Congress shall have power to regulate the raising and
spending of money and in-kind equivalents with respect [to] the Federal
elections … [and] State elections.” The proposed amendment includes a provision
that “Nothing in this article shall be construed to grant Congress the power to
abridge the freedom of the press.” So Breitbart News, The New York
Times
, and the mainstream media would be able to say whatever they want,
but citizens and citizen groups such as the National Rifle Association could
not.
It
seems like Harry Reid and his cronies have been reading retired Supreme Court
Justice John Paul Stevens’s book, Six
Amendments: How and Why We Should Change the Constitution,
which I reviewed
in “Justice Stevens’s Liberty-Destroying Amendments,” in three parts,
the relevant Part here.
Stevens recommended adding another amendment that would accomplish Reid’s purposes
and vitiate any freedom of speech protections. I wrote:
Stevens
writes that there is nothing to fear from his proposed amendment:
“A constitutional amendment
authorizing Congress and the states to place “reasonable” limitations
on campaign expenditures would allow corporations to make public announcements
of their views but would prohibit them from engaging in the kind of repetitive
and excessive advocacy that the candidates typically employ. It would also
repudiate both the holding and the reasoning in the Citizens United case, giving corporations an unlimited right to
spend their shareholders’ money in election campaigns.” (p. 78)
Do
the shareholders want a corporation to spend their money advocating issues? To
Stevens, their wishes are irrelevant. Do individuals who encounter
“repetitive and excessive” advocacy mind such encounters? That’s
irrelevant, too. Of course, those on the opposite side of an issue might mind
it, but, like Muslims who object to critical things being said and written
about Islam, they can just ignore it. Speech, written, oral, or visually, after
all, is not a form of physical aggression or force. But Stevens doesn’t want
the champions of big government and incremental socialism to be subjected to limitations
on “hate speech” that he wishes to impose on financed
counter-arguments. Democrats should be free to repeat their
“excessive” and “repetitive” messages over and over again. It’s
the other guy who must  be shut up.  Stevens’s suggested amendment, which requires
force or the threat of force, reads:
“Neither the First Amendment
nor any other provision of this Constitution shall be construed to prohibit the
Congress or any state from imposing reasonable limits on the amount of money
that candidates for public office, or their supporters, may spend in election
campaigns.” (p. 79)
The
second half of Reid’s proposed amendment to the First Amendment is virtually identical
in wording to Stevens’s proposed new amendment.
Who
will define what is “reasonable” and what is not? Is there an
infallible mathematical formula that would define “reasonableness”?
It would be okay, by Stevens, to abridge the scope of the First Amendment and
thus eviscerate its essential, fundamental meaning, just a little bit, to silence
those wealthy, anti-big-government people. vitiate.
How
was Reid’s proposed gutting of the First Amendment received by the press? With an
obfuscating sigh of relief. Greg Sargent of The Washington Post, in his May 15th
article, “Reid
calls for constitutional amendment on campaign cash
,” selectively
omits mentioning that the Democrats are as guilty of all the charges that Reid
levies against the Republicans, that “money is speech and speech is
money,” that freshets of special interest money “flood our
democracy,” that only “billionaire oil barons” will initiate a
“hostile takeover” of the country. One must ask oneself what level of
depraved repression would lead an alleged “journalist” to handily
forget which political party has made corruption, election rigging, and living
the high life on other people’s money a time-honored tradition – a party that has
more wealthy donors and supporters than the Republican Party ever had.
Also,
according to Reid and accepted uncritically by Sargent (and most liberals):
The argument is that electing
Republican lawmakers would do nothing to change this economic status quo,
because the GOP continues to be organized around the protection
of the interests of their very wealthy backers, whose influence over the
process must be broken before any serious policy response
to inequality and stalled economic opportunity and mobility can
happen.
After all, that recently-revealed
Americans for Prosperity memo
spelled out that the real goal of all those
millions in anti-Obamacare ads is to persuade swing voters that the answer to
their economic problems is as little government as possible. As the
New York Times detailed recently
, this vision of what is good
for America would also benefit the Koch brothers’ bottom line to an untold
degree. Reid will reference that memo today.
I
guess Democrats have no “very wealthy backs,” neither in Hollywood,
nor in the tech
industry
, nor in the insurance
industry
, nor on Wall
Street
. However, Nicole
Flatow
of the George Soros-funded Think
Progress
in her May 15th article, “Why the Senate’s Top
Leader Came Out for a Constitutional Amendment to Reverse Citizens United,” confirmed the link between the wording of
Reid’s proposed amendment and Justice John Paul Stevens’s proposed new
amendment, and also the collusion between the two men.
Reid told BuzzFeed that former
U.S. Supreme Court Justice John Paul Stevens persuaded him to join the effort,
after Stevens called
for the amendment
earlier this year in his new book. Reid, who decides what
votes get called as majority leader, said he will now hold hearings on the
amendment proposed by Sen. Udall, as well as call a vote on the House floor.
Reid
has not been alone in proposing to gag corporations and non-Democratic
non-profits over the amounts of money they spend on issues during election
periods. Flatow wrote:
Since 2010, movements to pass a
constitutional amendment overturning the U.S. Supreme Court’s decision in Citizens
United v. FEC
have gained significant ground, with a number of states passing
resolutions
calling for a constitutional amendment. As one California legislator
put it who introduced the bill that passed his state: “No one is
underestimating how difficult it is, and justifiably so, to amend the
Constitution. But being silent is worse.” And a number of top Democratic
senators have proposed
amendments in Congress
for several years now, including Tom Udall (NM),
Michael Bennett (CO), Tom Harkin (IA), Dick Durbin (IL), Chuck Schumer (NY),
Sheldon Whitehouse (RI), and Jeff Merkely (OR).
Many of the usual suspects., non sunt?
To
Democrats and other power-lusting politicians, the Constitution has served as
an impediment to “real social change.”  And that Constitutional requirement of needing
either two-thirds of both houses of Congress, or passage by legislatures in
three-fourths of states, to enact an amendment, is just another disdained, antiquated
obstacle to “voicing the people’s will” and empowering the democratic
mobs controlled and manipulated by the Democrats.
The
premier opponent of those Constitutional impediments – at least, the one in the
brightest limelight – is President Barack Obama. He, Reid, and all the other
suspects are on the same page. Paul Roderick Gregory in his September 23rd,
2012 Forbes article, “Why
The Fuss? Obama Has Long Been On Record In Favor of Redistribution
“:
In 2001, then state senator and University of
Chicago
law lecturer, Barack
Obama
, sat down for a public
radio interview
. At the time, he did not anticipate a near-term run for the
presidency. He spoke candidly and deliberately about how to “break free” of Constitutional
constraints against redistribution to provide “economic justice.” In the course
of his interview, Obama laid out the electoral strategy of cobbling together
the “power coalitions” that have been the hallmark of his 2012 re-election
campaign.
Among
other things he said during that interview, Obama opined:
First: “We still suffer from not
having a Constitution that guarantees its citizens economic rights.” By
positive economic rights, Obama means government protection against individual
economic failures, such as low incomes, unemployment, poverty, lack of health
care, and the like. Obama characterizes the Constitution as “a charter of
negative liberties,” which “says what the states can’t do to you (and) what the
Federal government can’t do to you, but doesn’t say what the Federal government
or State government must do on your behalf.”
Second, Obama regrets that the
Constitution places “essential constraints” on the government’s ability to
provide positive economic rights and that “we have not broken free” of these
Constitutional impediments.
Third, Obama concludes that we
cannot use the courts to break free of the limited-government constraints of
the Founders. The courts are too tradition and precedent bound “to bring about
significant redistributional change.”
Fourth, Obama argues that
economic rights that the state must supply are ultimately to be established at
the ballot box. Those who favor redistribution must gain legislative control
through an “actual coalition of powers through which you bring about
redistributive change.” The electoral task of a redistributive President is
therefore to craft coalitions of those who stand to benefit from government
largess. The legislature, not the courts, must do this “reparative economic
work.”
Gregory,
writing before the national election of 2012, which gave Obama a second
destructive term to achieve the Progressive, “redistributional”
agenda, warned:
An Obama electoral victory based
on “power coalitions” unconstrained by “negative rights” would fulfill the
Founders’ dread of an “overbearing majority.” As James Madison warned in 1787:
 “Measures are too often decided, not according to the rules of justice
and the rights of the minor party, but by the superior force of an interested
and overbearing majority.…. If a majority be united by a common interest, the
rights of the minority will be insecure.”
The Constitution’s framers used
the separation of powers and the Bill of Rights (most importantly the due
process clause of the Fifth Amendment) to render “the overbearing majority
…unable to concert and carry into effect schemes of oppression.” It is these
“negative rights” that Obama proposes to eliminate. With them disappear
restraints on limited government, and anything goes.
And
everything has gone. The restraints on Congressional, executive, and federal
power now are little more than strings of gossamer, thanks also to a Supreme
Court that has lost sight of its purpose. Our rights are no more secure than
they would have been in Nazi Germany or Soviet (or Putin’s) Russia.
But, there are back-door ways to quash freedom of
speech without having to resort to anything as formal as a proposed
constitutional amendment. The 2002 McCain-Feingold
Campaign Finance Act
, which dictates what and when one
may speak about candidates for office, ought to have been struck down by the
Supreme Court the moment the first suit about its constitutionality was filed.
Instead, the Court has simply crippled it with the Citizens United v. FEC case.
Dinish D’Souza, a prominent conservative writer and
filmmaker, and unabashed critic of Obama and his policies, was charged with
violating the Federal Election Commission’s rules on donor limits. Paul Bond,
in his Hollywood Reporter article of May 20th, “Dinesh D’Souza Pleads
Guilty to Making Illegal Campaign Contribution,” wrote:
In exchange for D’Souza’s plea, prosecutors are
expected to drop the more serious charge of making false statements to the
Federal Election Commission, a crime that carries a maximum sentence of five
years in prison.
D’Souza was indicted in January for asking some
friends to donate money to the campaign of Wendy Long, a Republican who ran unsuccessfully
against Democratic incumbent Sen. Kirsten Gillibrand in New York in 2012, and
allegedly promising to reimburse them for their donations.
Bond
noted:
From the beginning, attorney Benjamin Brafman
characterized his client’s alleged transgression as “an act of misguided
friendship,” and he and others have said federal authorities were engaging in
payback for D’Souza’s movie 2016: Obama’s America, a hit documentary
that portrayed President Barack Obama in a negative light. “
It’s a remarkably selective
prosecution, considering Obama raised millions of dollars under similar
circumstances and donors merely faced civil fines while D’Souza is charged with
felony violation of federal law,” Sen. Ted Cruz of Texas told The Hollywood Reporter in February.
If
D’Souza had not pleaded guilty, a trial would have been necessary, and on the
“illegal” contribution charge alone, if found guilty, he could have
been sentenced to a maximum of two years in prison.
In
1957, Ayn Rand’s prophetic novel, Atlas
Shrugged
, was published. It featured, in one chapter, the nature of laws
such as the Campaign Finance law. In that chapter, a federal bureaucratic
villain, Dr. Floyd Ferris, is trying to blackmail an industrialist into
“donating” his new metal to the nation as a “gift.” The
industrialist is “guilty” of buying more copper than federal law
allowed, and also for refusing to honor a federal purchase order for his
product. He tells the industrialist:
“Did you think that we want
those laws to be observed?” said Dr. Ferris. “We want them broken. You’d better get it straight that it’s not a
bunch of boy scouts you’re up against – then you’ll know that this is not the
age for beautiful gestures. We’re after power and we mean it. You fellows were
pikers, but we know the real trick, and you’d better get wise to it. There’s no
way to rule innocent men. The only power any government has is to crack down on
criminals. Well, when there aren’t enough criminals, one makes them. One
declares so many things to be a crime that it becomes impossible for men to
live without breaking laws. Who wants a nation of law-abiding citizens? What’s
there in that for anyone? But just pass the kinds of laws that can neither be
observed nor enforced nor objectively interpreted – and you create a nation of
lawbreakers – and then you cash in on guilt. Now that’s the system, Mr.
Rearden, that’s the game, and once you understand it, you’ll be much easier to
deal with.”*
And
that is the nature of the Campaign Finance law, a law created to shut us up and
to punish us if we don’t shut up, even if that takes the form of a scream of
pain. That is the purpose of Justice Stevens’s and Harry Reid’s constitutional
amendments, to silence the Dinesh D’Souza’s of this country. The proposed
amendments are not targeted at individuals who “collude” with other
individuals to cobble together more than the “allowed” minimum to any
organization or candidate. The existing law, together with the proposed
amendments, are specifically targeted at prominent individuals such as D’Souza,
to make an example of them, so everyone with lesser means will tremble in fear,
and fall into line.
The
purpose? To preserve and expand the political power of the Democrats, of all
the statists in and out of government, by silencing their critics. And that
issue is aside from the White House siccing the IRS on conservative groups for
not shutting up.
The
Progressives, the Left, and the Democrats want to shut us up – warning that if
we know what’s good for us – such as federal agents not hounding us and taking
us to court, or refraining from a plan bash on our skulls – we’ll shut up.
Try
me.

*P. 436. Atlas
Shrugged
, by Ayn Rand (1957). New York: Dutton/Penguin Books, 1992. 1168
pp.

The Guardian of Every Other Right: Part V

“Intellectual freedom cannot
exist without political freedom; political freedom cannot exist without
economic freedom; a free mind and a free market are corollaries.” – Ayn Rand, 1963*
Chapter
7 of James Ely’s book, “The New Deal and the Demise of Property-Conscious
Constitutionalism,” chronicles the Supreme Court’s timid retreat from a
semi-efficacious defense of property rights, unsure of the propriety of
property rights unless linked to the “public good,” browbeaten by
“public opinion,” and savaged by the Progressives.
The new political outlook emphatically
rejected the laissez-faire philosophy. Justice Louis D. Brandeis expressed this
reform sentiment when he declared in 1932, “There must be power in the
States and the Nation to remould, through experimentation,
our economic practices and institutions to meet changing social and economic
needs.” (Italics mine; p. 125)
“Experimentation”
meaning that Progressivism was basically a John Dewey-esque program of applied political
and economic Pragmatism.  While
“constitutionalism” relied  on
a strict interpretation of the Framers’ principled meanings – an
“ideology” regarded with hostility by Progressives and others of a
collectivist stripe – Progressivism is an ideology empty of any principles
except a desire and commitment to control, rule, and “harmonize” the
whole country and make it fit into an authoritarian straightjacket. If a new”
sin” tax or regulation of manufacturing or a new levy on corporate profits
doesn’t work here, maybe it’ll work over there, and if it doesn’t, we can try
something else. Never mind the inconvenience to property owners and the
dislocation of market forces the experiment produces. You can’t achieve an
omelet of “social equity” without breaking some eggs. Or some heads.
Theories and principles and definitions just get in the way.
Borrowing from the Progressive
legacy, President Roosevelt’s New Deal program was grounded on the notion that
government had an affirmative duty to promote the general social
welfare….Congress and the states enacted an extraordinary array of measures
that greatly enlarged governmental supervision of the economy and sought to
redistribute wealth and economic power. This social welfare approach flatly
contradicted the insistence on limited governmental activity, marketplace
competition, and respect for property rights that were at the heart of traditional constitutionalism. (Italics mine; p. 125)
I
emphasized “traditional” because a tradition is simply an old
practice or “habit” to acknowledge something that might have been
good and “worked” – as freedom has “worked” or proven its
value. But if one’s enemies snort at and wish to discard “tradition” because
it’s “old” and replace it with a haphazard, “let’s see if this
works” non-value, with submission to government authority, and with the
populist “will of the people,” a situation has been reached when the
defenders of freedom should restate, renew,
and perhaps even rediscover the
founding principles which they beforehand only blindly revered. This the Court
largely did not do.
Progressivism,
on the other hand, is reminiscent of a comedian’s holding down one social or
economic “ill,” only to cause one or more other “ills” to pop
up elsewhere. The “ills” multiply exponentially every time he attempts
to hold anyone of them down, and the comedic Progressives concoct more
solutions to the “ills” they themselves have caused. Think “The
Three Stooges,” only what Progressivism has done to the country is no
laughing matter.
Ely
writes that the composition of the Court was almost evenly divided between
justices who were hostile to the New Deal, those who were merely uneasy with it,
and those who were committed Progressives:
The Supreme Court’s stubborn
defense of entrepreneurial values precipitated a constitutional crisis.
Ultimately, under great political pressure and President Roosevelt’s threat to
pack the Court, several justices shifted their position and accommodated the
New Deal’s economic and social program. As a result of the constitutional
revolution of 1937, the Court abandoned its historic role as a protector of
individual property rights and permitted the federal government and the states
to play a major role in directing American economic life. Thereafter, the Court
relegated property rights to a secondary position and largely turned its
attention to other matters. (p. 126)
For
example, Ely cites a case involving mortgages and the quasi-theft or “taking”
of property:
At issue in the leading case of Home Building and Loan Association v. Blaisdell
(1934) was a Minnesota act imposing a limited moratorium on the foreclosure
of farm mortgages. Designed to safeguard the ownership of homes and farms, the
statute temporarily suspended the mortgage obligation while allowing the
mortgagor to remain in possession of the payment of a reasonable rent. The
mortgage moratorium was similar to the debtor-relief laws often declared
unconstitutional in the nineteenth century as an impairment of the obligation
of contract.
By a five-to-four margin, the
Supreme Court held that the moratorium did not violate the contract clause.
Clearly influenced by the economic emergency, Chief Justice Charles Evans
Hughes ruled that contracts were subject to the reasonable exercise of state
police power….He weighed the contractual rights of the parties against the
public-interest arguments of the state to determine whether the infringement of
the mortgage contract was reasonable. (pp. 126-127)
Ely
highlights the Court’s continuing downward fall from principles to wistful
pragmatism:
The Supreme Court also approved
federal regulation of agricultural production [a field the Court had previously
conceded was the states’ exclusive realm of control]. New Dealers hoped to
increase crop prices by restricting the supply. In Munford v. Smith (1939) the justices affirmed the second
Agricultural Adjustment Act, which provided for the imposition of marketing
quotas on farmers to reduce the volume of crops. The Court went a step further
in Wickard v. Filburn (1942) and
upheld federal power to set quotas for wheat consumed by a farmer for livestock
feed and household food on his own land. Justice Robert H. Jackson, writing for
the Court, defined congressional authority under the commerce clause in
sweeping terms, rejecting the distinction between direct and indirect effect on
interstate commerce. Jackson reasoned that the cumulative effect of consumption
of a small amount of homegrown wheat by many farmers could have a substantial
influence on the market price of wheat.
For all practical purposes, the
Supreme Court recognized an unqualified power in Congress to reach any economic
activity under the commerce clause. Indeed, the justices stated in 1946 that
federal commerce power was “as broad as the economic needs of the
nation.” (Brackets mine; p. 136)
It
is obvious that it never occurred to the justices to ask themselves whether the
solution to answering the nation’s “needs” was to get the government
out of the economy, where the Framers never intended it to be. 
In
more instances than can be repeated here, Ely records the “progress”
of the Court to becoming a virtual befuddled handmaiden of Progressivism under
the New Deal. The Court had resorted to what can only be characterized as
Constitutional bean-counting. “These beans are permissible, those others,
not. And those over there might not be beans at all, but we’re not sure. We’ll
err on the side of caution. We don’t want the president and the populace getting
mad at us again.”
Ely
chronicles the succession of taxes and controls imposed by Congress:
In the Emergency Price Control
Act of 1942, Congress conferred extensive powers on the Office of Price
Administration to fix prices of commodities “which will be generally fair
and equitable.”….
…[T]he Court…[in 1944] affirmed
the act’s rent control provisions, rejecting the contention that such controls
amounted to a taking of property….
Another New Deal innovation was
the use of federal taxing power for social welfare purposes. The Social
Security Act of 1935 imposed a special tax on employers and employees for the
payment of benefits to the aged…Adopting a liberal view of the taxing power,
the Supreme Court in Helvering vs. Davis
(1937) expansively ruled that Congress could spend money for the general
welfare….In effect, the Court sanctioned a comprehensive power in Congress to
levy taxes for any purposes that were thought to benefit the public….
Once the Supreme Court accepted
the New Deal, the justices abruptly withdrew from the field of economic
regulation. This reflected a monumental change in the Court’s attitude toward
property rights and entrepreneurial liberty. (Brackets mine; pp. 138-139)
Ely
emphasizes that the “cornerstone of this new constitutional direction was
a judicially created dichotomy between property rights and personal
liberties.” He quotes James L. Oakes in his 1953 Washington Law Review article, that, as far as the Court was
concerned, “property rights were essentially confined to a legal dust
bin.”
Ely’s
last chapter, “Property Rights and the Regulatory State” is not so
much a discussion of the timorous, muted revival in the Court of a concern for
property rights as it is a sketch of a vanquished nation, vanquished by its own
government and the highest court in the land.
Businesses adjusted to the
regulatory régime and prospered. Although sharp differences remained concerning
the precise role of the government in managing the economy and controlling the
usage of private property, few urged a return to a largely unregulated free
market before the New Deal. The dominant political ideology supported the
regulatory state and looked for a government solution to economic ills….The
federal and state governments mushroomed steadily in size and played a large
role in nearly every aspect of the economy. As the network of economic
regulations grew more intrusive, there was an erosion of individual property
rights. Some commentators even suggested that the basic notion of private
property ownership had disintegrated. (p. 142)
In
truth, what was disintegrating was the epistemology and metaphysics of the
justices. Ely names another culprit on the Court:  
In the 1950s and 1960s, the
Supreme Court, under the leadership of Chief
Justice Earl Warren
[appointed by President Dwight D. Eisenhower], embraced
the jurisprudence of substantive liberalism. Striving to achieve egalitarian
goals, the justices sanctioned the growing welfare state and consistently
deferred to legislative bodies with respect to economic and social issues….In
this climate, the security of property and contractual rights, long a primary
function of the federal judiciary, received scant attention. Heavily influence
by New Deal constitutionalism, the Court virtually eliminated property rights
from the constitutional agenda for several decades. (p. 143)
The
post-New Deal decision-making behavior of the Court vis-à-vis property rights protection can be likened to a man in a
semi-coma, babbling incoherently one moment, making semi-lucid observations the
next. Ely records some of the oscillating rulings of the Court. In regards to
the “takings” clause:
As discussed earlier, the Supreme
Court has long recognized that land use controls could have such a severe
economic impact as to represent a taking of the property. In practice, however,
the justices have been reluctant to invoke the doctrine of regulatory taking
and have allowed Congress and the states wide latitude to impose conditions on
the use of land. The Court has not established any formula for determining when
a restriction of property has gone too far, preferring instead to rely on an ad
hoc, case-by-case inquiry. Nonetheless, the justices have repeatedly declared
that regulations are not unconstitutional simply because they prevent the best
use of land or dramatically diminish its value to the owner. (p. 160)
Ely
cites one notable instance of this policy:
The Court has allowed cities to
enact land use regulations that enhance the aesthetic features of municipal
life. In Penn Central Transportation v.
New York
(1978), the Court by a six-to-three vote, sustained the
designation of Grand Central Terminal [now
privately owned
] as a historic landmark, even though such an action
prevented the landowner from modifying the building in any manner without
municipal permission, thereby causing a drastic reduction in its value. Justice
William Brennan, speaking for the Court, stressed that the landowner could use
the terminal for its original purpose and was able to earn a reasonable return
on its investment….But the factors, such as “distinct investment-backed
expectations,” and the “character of the government action” are
hazy, and there is no indication of how much weight should be assigned to each
factor. The result is a fact-bound and murky test heavily loaded in favor of
governmental regulation. In dissent, Justice [William] Rehnquist argued that a
taking had occurred and that the costs of a historic preservation program
should be borne by taxpayers generally,
not individual landowners. (Brackets and Italics
mine; p. 160)
One
could also argue that the one “taking” created another
“taking”: The taking of tax dollars “generally” to assist
the property owner in complying with the terms of the taking of his property
for “historic preservation” purposes. One supposes that Justice
Rehnquist overlooked that angle. But then, the Court had already sanctioned a
medley of takings for the “general welfare” and “public benefit”
reasons, so that aspect of the Grand Central Terminal case naturally would not
have occurred to him.
In
another land use case, Agins v. City of
Tiburon
(1980), Ely reports that the Court sided with the municipality and
its zoning restriction of construction on five acres by a developer of
single-family homes.
The Supreme Court rejected the
argument that the enactment of the ordinance constituted a taking or property.
Writing for the Court, Justice [Lewis F.] Powell noted that the application of
zoning laws effected a taking only “if the ordinance does not
substantially advance legitimate state interests…or denies an owner
economically viable use of his land.” He found that the Tiburon ordinance
served a legitimate function by preserving open space and enduring the orderly
development of residential property. (Brackets mine; p. 161)
Ely
introduces the reader to a new kind of “property” the Court was
willing to consider, one that is so bizarre and irrational that one can hardly
credit the justices with any kind of moral standing: Welfare and entitlements.
In Goldberg v. Kelly (1970) the justices, by a vote of five to four,
edged towards acceptance of the new property concept. They held that New York violated
due process procedural guarantees by terminating welfare benefits without a
prior hearing. Ultimately, however, the Supreme Court declined to treat most
entitlements under government programs as traditional property rights for the purpose
of due process. Instead, the Court viewed government benefits as merely
statutory creations and preserved in large measure of legislative authority to
manage and even eliminate benefit schemes….
Justice Brennan, a persistent
critic of extending constitutional protection to traditional economic
interests, was a leader in the move to recognize entitlements and public
employment as forms of property. Brennan thus refurbished the conservative
doctrine that respect for property rights secured political freedom to serve
egalitarian ends. The conservative justices, on the other hand, rejected the
new property theory, adopting the liberal approach that the courts should defer
to state control of economic matters. The result of this development was that government
benefits were accorded some procedural safeguards but never received the same
protection as traditional property rights. (p. 170)
One
is at a loss to classify such thinking as schizophrenia, or as evidence of a
split personality disorder.
In
his short Epilogue, James Ely sounds a dour, pessimistic note about the future
of property rights in the context of today’s political climate, especially (from
my own perspective) given the abusive, arrogant, wholly Progressive (some would
say Marxist) character of the current administration.
…[T]he facile suggestion in many
judicial opinions after 1937 that economic questions should be left entirely to
the political process is also troubling. If individuals or enterprises have
only those property rights that legislators choose to recognize, then property ownership
is simply a matter of legislative sufferance. No other important rights are treated in such a cavalier fashion….Much
legislation frankly seeks to achieve a wider distribution of wealth by
divesting owners of their right to use property to its maximum advantage and by
altering contractual arrangements. Such opportunistic behavior is less painful
to lawmakers than levying taxes to finance government programs. (Italics mine; p. 174)
On
the contrary, other rights, those to be found in the Bill of Rights, are or
have been treated in worse than a “cavalier fashion,” from gun
ownership, to the right to assembly (or association), to freedom of speech vis-à-vis criticizing Islam and campaign
finance law restrictions. The “regulatory state” knows no limits on
its appetite for power. No right today is sacrosanct or beyond the government’s
wish to curtail or abolish.
Only
just recently, Senate Majority Leader Harry Reid (D-NV), in the wake of his
defeat at the Cliven Bundy Ranch in Nevada, introduced a bill to abridge
political speech. Breitbart’s
Big Government
reported on May 18th:
On May
15, Senate Majority Leader Harry Reid (D-NV) announced the Senate Judiciary
Committee will hold a hearing on June 3 on amending the U.S. Constitution to
limit political speech. If ultimately adopted, it would mark the first time in
American history that a constitutional amendment rescinded a freedom listed as
among the fundamental rights of the American people.
The proposed amendment was
introduced by Sen. Tom Udall (D-CO) as S.J.R.
19
 and if ratified would become the Twenty-Eighth Amendment. It
provides in part that “Congress shall have power to regulate the raising and
spending of money and in-kind equivalents with respect [to] the Federal
elections … [and] State elections.” The proposed amendment includes a provision
that “Nothing in this article shall be construed to grant Congress the power to
abridge the freedom of the press.” So Breitbart News, The New York
Times
, and the mainstream media would be able to say whatever they want,
but citizens and citizen groups such as the National Rifle Association could
not.
Ely
seems to agree with me when he ends his book:
The future path of the Court is
difficult to predict. A return to a vigorous property-conscious
constitutionalism, however, appears highly problematic. Despite renewed
interest in the rights of property owners, it would require a sea change in the
legal culture before property rights are accorded the same level of protection as
other individual rights. In the last analysis, the viability of property
rights, perhaps like all other individual rights, rests on a broad popular acceptance. The courts will continue to strike a balance between popular democracy
and private property ownership
. (Italics
mine; pp. 174-175)
Again,
on the contrary, a recognition of individual rights does not rest “on a
broad popular acceptance” of them, but on the integrity and perspicuity of
justices. No balance “between popular democracy (the Framers founded a republic, not a democracy, which they abhorred) is possible.” Mob rule does
not establish the validity of individual rights. 

The problem can be solved when
the justices recognize, as Ayn Rand recognized, that “intellectual freedom
cannot exist without political freedom; political freedom cannot exist without
economic freedom; a free mind and a free market are corollaries.”

The
Guardian of Every Other Right: A Constitutional History of Property Rights
, by James W. Ely, Jr .. New
York: Oxford University Press, 2007. 216 pp.
*From
“For the New Intellectual,” in For
the New Intellectual
: The Philosophy of Ayn Rand
, by Ayn Rand. New
York: Signet, 1963. 224 pp.

The Guardian of Every Other Right: Part IV

“Intellectual freedom cannot
exist without political freedom; political freedom cannot exist without
economic freedom; a free mind and a free market are corollaries.” – Ayn Rand, 1963*
James
W. Ely, Jr.’s chapter, “Progressive Reform and Judicial Conservatism,
1900-1932,” details the clash between a noisy, generational cadre of
Progressives and the dwindling grasp of individual and property rights in the
American judiciary and especially on the Supreme Court. Lately, in our own
time, the Court has been called the “Supine Court,” so characterized because
of Chief
Justice John Roberts’s
bizarre, pretzel-like explanation in the majority
opinion in June of 2012 for upholding the Affordable Care Act (ACA, or Obamacare)
as a tax levied by Congress, as opposed to Congress’s power to “regulate
commerce,” in this instance, the power to compel “commerce”
between an individual and health insurance companies. As the New
York Times
reported:
“The Affordable Care Act’s
requirement that certain individuals pay a financial penalty for not obtaining
health insurance may reasonably be characterized as a tax,” Chief Justice
Roberts wrote in the majority opinion. “Because the Constitution permits such a
tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
At the same time, the court
rejected the argument that the administration had pressed most vigorously in
support of the law, that its individual mandate was justified by Congress’s
power to regulate interstate commerce. The vote was again 5 to 4, but in this
instance Chief Justice Roberts and the court’s four more conservative members
were in agreement.
The
majority opinion on the other hand ostensively rejected the Administration’s
contention that the ACA’s constitutional status was sanctioned by the commerce clause. Whether
or not the mandatory transaction takes place within or across state lines is in
fact irrelevant, even though most
states forbid
buying virtually any kind of insurance from an out-of-state
company. The “individual mandate” crosses every state line, it’s a
federal mandate or compulsory “economic activity,” ergo,
“interstate.”
Significantly,
Roberts wrote (and in the meantime impugned the character of the Framers):
“To an economist, perhaps,
there is no difference between activity and inactivity; both have measurable
economic effects on commerce,” Chief Justice Roberts wrote. “But the
distinction between doing something and doing nothing would not have been lost
on the framers, who were practical statesmen, not metaphysical philosophers.”
Justice
Clarence
Thomas
, in his 193-page dissenting opinion, among other issues pointed out
that compelling “economic activity” and penalizing economic
“inactivity” – that is, not buying health insurance – was not what the Framers of the Constitution
had in mind when they drew up the document.
Ely
does not discuss the Obamacare decision, but because of its relevance to the
subject, I thought it deserved mention. So, returning to his book…..
In response to…changed economic
conditions, a broad-based reform movement, known as Progressivism, emerged
during the early years of the twentieth century. The objectives of this
coalition were diverse and included electoral reforms designed to make the
political system more responsive to the public. But the primary Progressive
concern was to correct the imbalance of economic power associated with the new
industrial order. Contending that the unregulated market often functioned
poorly, Progressives sought to control large-scale corporate enterprise to
preserve competition and mitigate the conditions of industrial employment. At
the heart of the reform program lay the Progressive insistence on a more active
role for both state and federal governments in regulating the economy and
meeting social problems….Progressives viewed the states as important
laboratories for legislative experimentation. (pp. 106-107)
Boiled
down to simple terms in every respect, the Progressives would claim that an
“imbalance” existed between a man who had ten dollars and a man who
had only three. “Social justice” or some other Progressive euphemism
would be achieved by taking three or even four dollars from the first man and
giving it to the second man.
From
my own readings, members of the judiciary on both federal and state levels,
with few exceptions, were ignorant of the ulterior motives of the Progressives,
which was a program of the incremental imposition of socialism. Again, with few
exceptions, justices rarely questioned what Progressivism was
“progressing” to, which was a command economy ruled by a powerful
central government.
In the landmark Lochner v. New York case (1905),
“the Court gave sharp teeth to economic due process by invalidating a
statute that restricted work in bakeries to ten hours a day or sixty hours a
week. Speaking for a five-to-four majority, Justice Rufus W. Peckham held that
the law violated the liberty of contract as protected by the Fourteenth Amendment.
Although he recognized that a state could enact laws to protect the health of
workers, Peckham was not persuaded that the baking trade was unhealthy. (p.107)
Justice
Peckham, writes Ely, suspected an ulterior motive behind the statute was not
ensuring the health of bakery workers, but to regulate labor relations. He
described the statute “as mere meddlesome interferences with the rights of
the individual.” This was the limit of his ability to articulate the
ulterior motives of the Progressives in the New York legislature who had
authored the statute.
Oliver
Wendell Holmes, Jr., was one of the few exceptions who knew what the
Progressives wanted and where they were “progressing” to: A genuinely
“democratic” government that reflected public opinion and trends. Dissenting
from the majority in Lochner in no
uncertain terms, and “denying that contractual freedom was protected by
the due process norm,” he said:
“This case,” he
charged, “is decided on an economic theory which a large part of the
country does not entertain.” Holmes articulated a philosophy of judicial
restraint under which the Court should defer to “the right of a majority
to embody their opinions in law.” Skeptical about absolute legal values,
Holmes sought to preserve a wide latitude for the political resolution of
economic disputes. (p. 108)
Holmes
was a revered “judicial pragmatist.” Ely elaborated further on
Progressivism’s agenda:
Rejecting the notion that legal
principles were fixed, reformers demanded that law reflect social reality and
the underlying needs of society. They called for a connection between law and
the insights of social science. Louis D. Brandeis [Associate
Justice on the Court 1916-1939, nominated by Woodrow Wilson] was among the most
influential proponents of this sociological jurisprudence. A successful
corporate attorney with a Boston practice, Brandeis was an articulate advocate
of Progressivism. He argued that the courts should take into account of economic
and social changes and consider the validity of regulatory legislation in light
on contemporary social conditions….To give practical application to these
reformist attitudes, Brandeis pioneered the use of social facts before the
courts. (Brackets mine; p. 109)
The
Court fought a rearguard action for the protection of property rights against
the constant guerilla warfare-like raids by the Progressives. The Court won a
string of victories against the Progressives in this period, as Ely details,
but the victories were qualified because of the Court’s concession that
“social ills” existed and should be corrected with legislative action.
Ely writes:
While seeking reform on the state
level, Progressives also called on the federal government to play an active
role in regulating the economy. In particular, they urged Congress to expand
the use of federal power to eliminate social ills and control the competitive
behavior of large corporations….Yet the prevailing understanding of federal
commerce power hampered reform efforts. During the late nineteenth century, the
Supreme Court drew a distinction between commerce and manufacturing, thus
placing control of production beyond the power of Congress. The Court
cautiously recognized a greater scope for federal authority over commerce but
continued to insist that important areas of economic life could not be governed
by Congress. (p. 113)
Congress
need not directly dictate control of economic activities. Many federal
departments and bureaus, such as the Securities and Exchange Commission, the
Environmental Protection Agency, and the Department of Education exercise such
control. These and other federal bureaucracies were the long-range offspring of
Progressive agitation for the government to “do something” about
“social” and “economic” ills and “imbalances.”
Ely
writes:
To implement social and economic
reforms, the Progressive movement championed the growth of the administrative
state. Reformers placed great faith in the administrative approach to
regulatory issues.  As envisioned by Progressives,
independent regulatory agencies composed of nonpolitical experts would exercise
sound judgment in carrying out legislative policy….In 1913, Congress created
the Federal Reserve Board to oversee banking and credit and, a year later,
established the Federal Trade Commission (FTC) to police unfair trade
practices. (p. 116)
In
his chapter “The Gilded Age,” discussed in Part Three of this review, Ely featured the passage of a federal
income tax in 1894. He writes:
Critics…feared that the tax was
an opening wedge for additional assaults on property rights. Conservatives promptly
arranged a challenge to the newly enacted levy in Pollack v. Farmers’ Loan & Trust Co. (1895), insisting that the
income tax was an unconstitutional direct tax….Arguing before the Supreme
Court, Joseph H. Choate, a prominent New York attorney, characterized the
income tax as “communistic in its purposes and tendencies.” He
further asserted that this case involved “the preservation of the fundamental
rights of private property and equality before the law.”  (p. 102)
The
1894 tax was consciously aimed at the wealthy. The Court overturned the tax,
citing the apportionment clause in the Constitution, however, not questioning the
reasoning behind that clause. Fast forwarding to 1913, Ely reveals the
foolhardy behavior of Congress’s conservatives, who sought to quash further
agitation for a federal income tax.
Seeking to defeat a direct
challenge to the Pollock decisions,
Senate conservatives in 1909 proposed a constitutional amendment enabling
Congress to tax incomes without apportionment among the states according to population.
They mistakenly calculated that the proposal would fail to win ratification by
the states. The Sixteenth Amendment voided the Pollock decisions, and Congress promptly used its new power to levy
a graduated tax on individual incomes over $3,000 as well as a flat tax on
corporate income. The burden of the individual income tax fell on less than 3
percent of the population [that is, the wealthy]. (Brackets mine; p. 117)
There
is an interesting history behind the ratification of the Sixteenth Amendment.
Ratification required that three-fourths of the 48 states approve of it.
However, then Secretary of State Philander Knox appeared to have jumped the gun
and proclaimed the amendment adopted. We the
People
ends a narration of the shenanigans behind the ratification:
These last five states, along
with Kentucky and Oklahoma, have particularly strong implications with regard
to the fraud charge against Knox, in that he cannot be excused for not knowing
they shouldn’t have been counted. Why was he in such a hurry? Why did he not
demand that they send proper documentation? They never did. Further review
would make the list dwindle down much more, but with the number down to 20,
sixteen fewer than required, this is a suitable place to rest, without getting
into the matter of several states whose constitutions limited the taxing
authority of their legislatures, which could not give to the federal govern
authority they did not have.
The results from the six states
Knox had not heard from at the time he made his proclamation do not affect the conclusion
that the amendment was not legally ratified. Of those six: two (Virginia and
Pennsylvania) he never did hear from, because they ignored the proposed
amendment; Florida rejected it; two others (Vermont and Massachusetts) had
rejected it much earlier by recorded votes, but, strangely, submitted to the
Secretary within a few days of his ratification proclamation that they had
passed it (without recorded votes); West Virginia had purportedly approved it
at the end of January 1913, but its notification had not yet been received
(remember that West Virginia had violated its own constitution, as noted
above).
Ely
has his own conclusions:
By breaching the time-honored
norm of an even-handed tax policy, the Sixteenth Amendment opened the door for
tax policies designed to redistribute wealth. Moreover, it provided an enhanced
revenue source from which the federal government greatly extended its reach
over American society. (pp. 118-119)
Ely
lists the multi-pronged attack not only on the Constitution, but on the Supreme
Court and other federal courts.
First, scholars associated with
the Progressive movement sought to weaken the aura of sanctity surrounding the U.S.
Constitution and the Supreme Court. Foremost among this intellectual challenge
was the publication in 1913of Charles A. Beard’s An Economic Interpretation of the Constitution of the United States. Beard
pictured the drafting of the Constitution in conspiratorial terms….
Second, Progressives challenged
the centrality of property rights in the American constitutional order. Legal
theorists allied with the Progressive movement assailed the Lockean idea that
property was a pre-political natural right. These scholars maintained that
property should be reconceptualized as a creation of society that did not
entail any fixed set of rights. [Sound familiar? President Obama echoed that falsity,
many commentators claiming his statement was quoted out of context, including FactCheck.org.]
This new pattern of thought attempted to undermine the very notion of property
and cast doubt on its high constitutional standing….
Third, the Progressives asserted
that the Supreme Court exercised a vast discretion over the validity of social
and economic measure and complained about “judicial supremacy.”
Progressives maintained that federal judges were simply substituting their
economic views for the judgment of popularly elected legislatures….
The Progressives devised several
proposals to curb federal judicial power. Some reformers favored amending the
Constitution to strengthen popular control of the judiciary….(Brackets mine;
pp. 122-123)
Ely’s
chapters, “The New Deal and the Demise of Property-Conscious
Constitutionalism,” and “Property Rights and the Regulator State”
deserve separate discussion. This will be done in Part Five of this review.
The
Guardian of Every Other Right: A Constitutional History of Property Rights
, by James W. Ely, Jr .. New
York: Oxford University Press, 2007. 216 pp.
*From
“For the New Intellectual,” in For
the New Intellectual
: The Philosophy of Ayn Rand
, by Ayn Rand. New
York: Signet, 1963. 224 pp.

The Guardian of Every Other Right: Part III

“Intellectual freedom cannot
exist without political freedom; political freedom cannot exist without
economic freedom; a free mind and a free market are corollaries.” – Ayn Rand, 1963*
As
a final note on James W. Ely, Jr.’s chapter, “The Development of Property
Rights,” where we left off in Part
II
of this review, something should be said about the status of
intellectual property and patents. Ely wrote:
Patent and copyright law also
raised important issues of property rights and community interests during the antebellum period. The Constitution
authorized Congress to grant limited monopolies to inventors and authors for
the purpose of encouraging technology and literary production. In 1790 Congress
passed legislation securing both copyrights and patents. Under these acts,
copyrights lasted for a renewable term of fourteen years from the date of
publication. Patents, granted on application for novel and useful inventions
had a duration not exceeding fourteen years. once copyrights and patents
expired, the work fell into the public domain. (Italics mine; p. 81)
Ely
does not discuss the status of trademarks, however.
The Supreme Court’s first ruling
on the law of intellectual property was Wheaton
v. Peters
(1834). Concluding that there was no common law copyright, the
Court held that a statutory copyright could be obtained only by strict
compliance with the terms of the 1790 act. Reflecting the Jacksonian hostility
to monopolies, the Wheaton decision
established that copyright protection was designed
to benefit the public
and was therefore confined to the narrow limits set
by Congress. (Italics mine; p. 81)
Ironically,
Wheaton v. Peters concerned the
status of copies of the Supreme Court’s deliberations as recorded and managed by
a Court reporter, Henry Wheaton. Supreme
Justia.com
carries the opinion of Court:
In the eighth section of the
first article of the Constitution of the United States it is declared that
Congress shall have the power “to promote the progress of science and the
useful arts by securing, for a limited time, to authors and inventors the
exclusive right to their respective writings and inventions.”
The word “secure,” as
used in the Constitution, could not mean the protection of an acknowledged
legal right. It refers to inventors as well as authors, and it has never been
pretended by anyone either in this country or in England that an inventor has a
perpetual right at common law to sell the thing invented.
Henry
Wheaton had filed a copyright claim to the Court’s reports, and transferred
publication rights to another person, while renewing the copyright for himself
for another fourteen years. In the meantime, his successor as Court clerk,
Richard Peters, published an abridged version of Wheaton’s 24-volume work.
While Peters’s six-volume abridged version was based on Wheaton’s work, Wheaton
was not paid anything from the sales of Peters’s version, which was a financial
success. Procedural details governed the outcome of the case, as well,
concerning whether or not Wheaton and others had complied with the terms of the
1790 law. My point here is that it was the “public” that was deferred
to as the prime beneficiary of intellectual property, not the creator, not the
individual who had a first claim to his intellectual or patented idea. This
theme governed Court decisions well into the 20th century. The
opinion stated:
That every man is entitled to the
fruits of his own labor must be admitted, but he can enjoy them only, except by
statutory provision, under the rules of property, which regulate society and
which define the rights of things in general.
We
now move on the post-Civil War “Gilded Age and the Challenge of
Industrialization.” This era saw the initial disintegration of any
protection of property rights, which would reach a climax with the debut of
President Franklin D. Roosevelt’s New Deal in the 1930’s.
Ely
begins this chapter with:
American society experienced
sweeping changes in the latter part of the nineteenth century. The Civil War
destroyed slavery as a form of property and altered the balance of power
between the federal government and the states. Industrialization and the growth
of large-scale corporate enterprise transformed economic life, and Americans
struggled to adjust to the new economic and social order. Prevailing
constitutional thought stressed property rights and limitations on legitimate
government authority….Armed with the due process clause
of the Fourteenth Amendment, the Supreme Court emerged as a champion of
economic liberty….This set the stage for a clash with those who favored greater
regulatory intervention in the market. Concomitantly, the justices afforded
greater protection to property owners by broadening the reach of the takings clause of the
Fifth Amendment, and they invoked the commerce clause to
strike down state interference with interstate commerce. (p. 83)
There
were premonitory exceptions to the Court’s “prevailing constitutional
thought.” Citing again the passage of the first income tax law in 1861,
and the Legal Tender Act of 1862, which declared that the federal government’s
paper money notes were “legal tender for all debts and the payment of
taxes,” Ely writes:
Further, in 1864 Congress
organized the national banking system and established a uniform currency of
national banknotes. A year later Congress placed a heavy tax on state banknotes,
effectively driving them out of circulation as currency. (p. 85)
Ely
continues in another paragraph:
Also significant was the decision
in Veazie Bank v. Fenno (1869), in
which the Supreme Court affirmed the power of Congress to tax the notes of
state banks [state government issued currency]. Stressing the importance of
securing a uniform currency, the Court refused to scrutinize the motives of
Congress in levying such a prohibitive tax. Thus, Veazie Bank established that Congress could use its taxing power to
regulate or even eliminate particular economic activities. (Clarifying brackets
mine; p. 85)
Ely
does not mention any instances of the Court in any period questioning the power
of any government, federal or state, to create banks. While government-created
banks were deemed “economic activities,” they were not per se private enterprises or private
property. Establishing banks was not one of Congress’s original enumerated
powers. He does discuss, albeit briefly, the assumed powers of Congress to
monopolize currency and establish a “uniform national currency.”
In
a grain elevator case in 1877, Munn v.
Illinois
, the Court upheld an Illinois statute “that set the rate for
storing grain in Chicago elevators.”
The elevator managers assailed
this measure as both a deprivation of property without due process and an
impermissible regulation of interstate commerce by a state.
Upholding the Illinois law, the
Supreme Court again adopted a deferential attitude toward state authority to
control the use of private property. Speaking for the Court, Chief Justice
Morrison R. Waite ruled that “when private property is devoted to public
use, it is subject to public regulation.” Whether this public interest
doctrine applied to a particular enterprise was considered a matter for
legislative judgment. Although recognizing that the property owner
“clothed with a public interest” was entitled to reasonable
compensation, Waite further declared that the determination of such
compensation was a legislative task, not a judicial one. The only protection of
property owners against legislative abuse was resort to the political process.
(pp. 87-88)
Another
justice dissented with the majority opinion, “warning that under the Munn rationale, “‘all property and
all business in the State are held at the mercy of its legislature.'”
Stating that grain storage was a
private business, he maintained that the due process clause afforded
substantive protection to owners in their right to use and derive income from
property. (p. 88)
Developing
his theme of the clash between legislative aegis to control property, with the
“public” present in the Court as an amorphous but mute amicus curiæ  (“friend of the court”),  and liberty in the form of private property,
Ely mentions two 19th century theorists who expostulated on the
perils of legislative powers, Thomas M. Cooley and Christopher G. Tiedeman.
Cooley and Tiedeman gave impetus
to the widespread acceptance of a constitutionalism grounded in economic
liberty. Such advocates shared a deep aversion to state-sanctioned monopoly and
viewed with suspicion most governmental intervention into the market economy.  Consistent with the Jacksonian heritage, they
insisted that the government could not legitimately aid one class or group
against another. Attorneys for corporate enterprise were quick to urge this
position on the Supreme Court. They repeatedly contended that regulatory
statutes exceeded legislative authority and particularly attacked laws seeking
to redistribute wealth patterns.
The fundamental concerns of
laissez-faire proponents, however, went beyond the entrenchment of economic
privilege. They saw a close connection between economic liberty and the
protection of personal freedom against government authority. (p. 89)
Still,
as the nineteenth century drew to a close, the Supreme Court (as well as
federal district and appellate courts) gradually shifted from a broad “eight-lane
highway” approach to defending property rights to interpreting such
protection in the alleys and byways of procedural niceties, constitutional protocols,
and sheer funk of not wanting to tangle with state laws or even buck
“populist” sentiment.  Fundamentals
established by the Founders began to be forgotten or dismissed as “old
fashioned” and harking back to different social and economic circumstances
that no longer applied to rights. Ely writes, concerning the takings clause or
eminent domain to benefit a private party:
In the important case of Missouri Pacific Railway Company v. Nebraska
(1896) the Court [ruled] that the taking of property for the private use of
another violated the due process clause of the Fourteenth Amendment. Nonetheless,
both federal and state courts tended to defer to legislative findings that a
particular appropriation of property was for a public use. This attitude helped
erode the “public use” limitation as a check on the exercise of
eminent domain. (p. 94)
In
another case:
At the same time, the Supreme
Court was cool toward the claim that [state] regulations limiting the use of
property represented and unconstitutional taking without compensation. A Kansas
law, for instance, prohibited the manufacture or sale of liquor and ordered the
destruction of liquor already in stock. By preventing the use of breweries for
their intended purpose, the statute drastically reduced the value of land and
equipment to the owners. Stressing that this legislation did not disturb the
owners’ use of property for lawful
activities, the Court in Mugler v. Kansas
(1887) stated that a “prohibition simply upon the use of property for purposes
that are declared by valid legislation, to be injurious to the health, morals,
and safety of the community, cannot in any sense, be deemed a taking or an
appropriation of property for the public benefit.” In a dissenting opinion…Justice
Field refused to concede that the legislature could limit the use of land without
compensation and found that the destruction of liquor and brewing utensils
“crossed the line which separates regulation from confiscation.” (Italics mine; pp. 94-95)
If
a state legislature deemed a certain “economic activity” as unlawful, the Court increasingly refused
to question the moral propriety or validity of such a judgment. As for relying
on the due process clause as protection of property, Ely notes:
…[D]uring the late nineteenth
century the contract clause was gradually eclipsed by economic due process as
the primary constitutional safeguard of property and business interests. Several
factors explain the declining importance of the contract clause. By its terms
the contract clause applied solely to the states and afforded no protection from federal regulation. (Italics mine; pp. 95-96)
Ely
leaves the Gilded Age behind by giving us a few examples of the growing
judicial myopia of the Court.
For the most part there was no
federal legislation governing business activities, and the Supreme Court had
difficulty formulating a standard by which to determine the extent of allowable
state regulation of interstate commerce….Taking a step away from Munn, the
Supreme Court held in Wabash, St. Louis
& Pacific Railway vs. Illinois
(1886) that state regulation of
interstate rates invaded federal power under the commerce clause. The Court
reasoned that “this species of regulation is one which must be, if established
at all, of a general and national character, and cannot be safely and wisely limited
to local rules and local regulations.”
In response, Congress passed the
Interstate Commerce Act (1887), the first major affirmative exercise of federal
regulatory authority under the commerce clause….Using the model of existing
state regulations, the act also created the Interstate Commerce Commission
(ICC), with the power to conduct hearings and issue orders to halt practices
violating the statute….Whatever its shortcomings, the ICC was the first federal
regulatory agency and heralded the rise of the administrative state during the
twentieth century. (p. 100)
Capturing
the hesitation and doubt that was beginning to hamstring the Supreme Court, Ely
writes:
As Congress began gingerly to
regulate interstate commerce, the Supreme Court adopted a restrictive
conception of commerce and thereby limited the reach of Congress under the
commerce clause. In Kidd v. Pearson
(1888) the justices concluded that a state could prevent the manufacture of
liquor for shipment to other states. Distinguishing between commerce and
production, the Court defined commerce as trade and transportation. Under this
interpretation, on the states could regulate manufacturing, mining, and
agriculture. Although the distinction between commerce and production was later
attacked as artificial, it preserved extensive state control over business and
was broadly consistent with the constitutional scheme granting only enumerated
powers to Congress. [!!!] (Exclamation marks mine; p. 101)
Ely
hadn’t forgotten another unenumerated power of Congress.
The full implications of Kidd became evident in cases dealing
with antitrust policy. Widespread public concern about monopolistic practices
and market domination by a handful of corporations led to passage of the
Sherman Antitrust Act of 1890, which declared illegal every contract or
combination in restraint of trade among the states. At issue in United States v. E.C. Knight Co. (1895) was
an effort by the government to dissolve a combination that controlled over 90
percent of the sugar refining in the country and was thus able to control the
price of sugar. Speaking for the Court, Chief Justice Fuller famously asserted:
“Commerce succeeds to manufacture, and is not part of it….The fact that an
article is manufactured for export to another State does not of itself make it
an article of interstate commerce.” Because the refining of sugar was
manufacturing rather than trade among the states, such activity could not be
governed by the Sherman Act. (p. 101)
This
is winning a victory on the enemy’s terms. “Restraint of trade,” as a
strictly defined term, logically conjures up scenarios of criminals employing
force or extortion to compel men to be fettered vassals and patrons of a
successful corporation. Ely ends the chapter with the observation:
The Gilded Age marked an
important watershed in U.S. constitutional history….The justices tended to
strike down redistributive or class legislation but found that most exercises
of [state] police power passed muster. The Court never sought to impose a
strict laissez-faire ideology. (p. 104)
Part IV (and the last Part) of this review will track the rise
of Progressivism and the debut of Roosevelt’s New Deal, and how these
developments affected the fading wisdom of the Supreme Court.
The
Guardian of Every Other Right: A Constitutional History of Property Rights
, by James W. Ely, Jr .. New
York: Oxford University Press, 2007. 216 pp.
*From
“For the New Intellectual,” in For
the New Intellectual
: The Philosophy of Ayn Rand
, by Ayn Rand. New
York: Signet, 1963. 224 pp.

Roosters of the Apocalypse

Imagine:
A
caveman sits at night in front of his hole in the hill, at the edge of a cliff,
absently stroking his lice-ridden beard, shivering even in his polecat and
skunk coat, hoping his little fire won’t attract the attention of the growling,
carnivorous beasts that roamed the forest below. He is hungry. Today’s hunt
netted him nothing but some berries he picked from a bush, and a few grubs. Small
animals had fled his approach as he lumbered noisily through the brush. He
silently prayed to the weather gods to send more raccoons and squirrels his
way. But the only answer was the cacophonous, deafening racket of birds,
insects, and other creatures as they sang to the night.
The
gods were fickle; sometimes it rained endlessly, other times weeks went by
without a drop of rainfall. They were also unpredictable with the seasons; the
sun god was sometimes hotter, sometimes did not warm his skin; oft times it hid
for days behind a rainless canopy of clouds. There was a season when it snowed;
this was when the caveman was able to drink cupped hands of ice water without
worry of getting sick. When it rained, he stood outside his cave, head thrown
back, mouth open, to catch the drops. There was a stream somewhere below. He
had drunk from it, but the water was foul and made him ill, as it had made his
family ill.
The
caveman was born in his cave. He had never ventured far from it. He was alone.
His family were all gone, perished from illnesses he did not understand, or
stricken down by one or another angry god. His son was the last to go. He had
lost him when the giant finger of the god of wind had fallen on him during one
of their rare excursions to the outside world. The caveman had looked at the
crushed figure beneath a long, round rock-like thing, cried in dismay, and
scurried in terror back into the wilderness. What had he done to incur the wind
god’s wrath? He could not fathom the mystery. The universe he knew was hostile
and unknowable.
The
forest below was strewn with strangely shaped, overgrown objects, big and
small, made of materials alien to the caveman, some encased in flaking red
crusts, others of a baffling, impenetrable nature, bizarre in shape and to the
touch. They were not rocks. His father had told him they were the bones and
offal of the sky gods’ food. A wise man in his father’s youth had told him
that.
He
heard twigs snapping below. He leaned cautiously over the edge of the cliff and
espied the slinking, shadowy form of a beast of prey moving beneath the
disturbed foliage. The caveman gasped and froze.
 It was a Jin, one of
the earth god’s angels of vengeance and punishment and a merciless guardian of
the earth
. Jins were human in form,
his father had told him, and stalked only careless cavemen who revealed their
outlawed existence by building fires which offended the god of darkness and who
otherwise despoiled the earth with their presence and appetites. The
Jins killed men for the sake of killing. The
caveman’s father’s own father years ago had warned his family of these
Jins, called “purifiers,” select
stewards of Gaia and caretakers of the planet, he said, and then he had
disappeared into the forest on a hunt and he was never seen again.
Neither
the father nor his son, now the lonely caveman, had understood half of what the
old man had said. But they knew enough to be afraid of the half they did.
The
caveman reached over and grasped his club, which he had fashioned from a limb
from a dead tree, against the will of the wood god, using sharp rocks from the
stream below….
No,
this story is not set 100,000 years ago in prehistory. It is set late in the
next century, or in the one after it, after environmentalists and “climate
change” acolytes and their useful idiot allies in politics and academia have
destroyed Western civilization. There is no more history, because those born in
that kind of world would have no memory of the world that perished long before
their own world had risen up among the caveman’s surviving ancestors to smother
them. The caveman is sitting among some ruins of a forgotten, even unknown world.
His
son was killed by a toppling wind turbine whose foundation had finally
crumbled.
Of
course, the caveman perishes under the club of the “purifying” Jin, a caretaker environmentalist. What a
great subject for another apocalyptic
movie. If one examines the root motive of environmentalists – discarding all
the guff about “saving the planet,” “saving the polar bear and
the snail darter and the smelt and the wolf,” saving the
“scenery,” “conserving natural resources for our children,”
eradicating pollution, “reducing CO2 emissions,” and so on – one will
discover the dark, venomous bile of pure nihilism or a profound hatred of man.
The cavemen’s world is a Utopia – to the glassy-eyed environmentalists.
The
caveman’s Jin could also be called a
“rooster,” as Rael Jean Isaac calls them in her marvelous little
book, Roosters of the Apocalypse: How the
Junk Science of Global Warming is Bankrupting the Western World
.
The
title of the book reviewed here, as Richard Lindzen explains in the Foreword,
…comes from Richard Landes’s
study of the apocalyptic millennial movements. The classic example of that of
the South African Xhosa tribe’s futile attempt, led by what Landes refers to as
the society’s Roosters, to defeat the British by sacrificing their cattle and
crops in the hope that this would induce their ancestors to come to their
rescue. (p. 13)
Isaac
is a sociologist who has written and spoken extensively on various movements
and ideologies, good and bad, from mental illness to Israel and global warming.
I read her and her husband’s Coercive
Utopians: Social Deception by America’s Power Players
shortly after it
appeared in print in 1984. It is an early work of which Roosters is a logical extension.
 Doubtless readers have observed over the years
how environmentalists and their cohorts have renamed man-caused “global cooling”
to “global warming,” to “climate change,” and now, it
seems, to “climate interruption.” Stand by for the next revision of
the lexicon. It’s hard to realize that the power which the EPA and the federal
government wield had its roots in the “ecology” movement, when flower
children and hippies went around singing “Kumbayah” and accusing “big oil” of polluting Mars
and Venus (when “big oil” was actually Saudi Arabia and OPEC) and
other dastardly crimes committed by capitalism. Then they found allies in the
Weathermen, the Students for a Democratic Society (SDS), and other terrorist
groups, and the game changed from one of persuasion to force.
It’s
also a wake-up call to remember that the movement had no real philosophical opposition.
It was a Republican, Richard Nixon, who in December 1970 signed into law by executive
order (sound familiar?) the creation of the Environmental Protection Agency
through the Clean Air Act.
Nixon was a consummate pragmatist with no actual political philosophy or a
solid opinion on anything. If someone had told him it was mandatory that the
president wear socks with clocks to press conferences and state banquets, he
couldn’t have devised a counter-argument.
Of
course since its inception the EPA has burgeoned in size and power, with over 15,000
employees, not counting gaggles of “independent consultants,” a
projected 2015 budget
now of nearly $8 billion, and thirteen departments, including its strong-arm
“police” branch, the Office
of Enforcement and Compliance Assurance
, which has its own “most
wanted” list of offenders.
  
As
Richard Lindzen notes in his Foreword, Isaac narrates the oscillating positions
of the environmentalists and in particular those of the “anti-energy”
contingent:
I can’t help suspecting that the
real enemy of such movements is the common man, whose condition was vastly
improved by the massive improvements in energy technology [and also by capitalism]….However, as Dr. Isaac
notes, although such sources as nuclear and natural gas were once favored by
environmentalists, environmental support for any source of energy ceases when that source proves viable, as
observed by Peter Metzger in the ’70s. (Italics
and square brackets mine; p. 14)
I
think that observation is an important but misunderstood clue to the nihilistic
root motives of the environmentalists. The plain truth of it must beggar belief
in the minds of critics of environmentalism, that these people can’t be that vile. But if support for energy
sources consistently dissipates when a source proves practical and economical,
what else can one conclude about the core motivations and character of the most
militant and vociferous environmentalists?
Isaac
herself, for all the knowledge she displays in her book of the destructive
shenanigans of the environmentalists, in and out of government, does not come
close to grasping the issue, either.
 That being said, in “Roosters vs.
Owls” (“owls” being the scorned climate change deniers and
skeptics), Isaac paints a scientific establishment completely invested in
anthropological global warming (AGW), cooling, interruption, and etc., or at
least in thrall to the junk science.
The governing boards of many
scientific associations in the United States endorse the movement. Elite
scientific associations, including the U.K.’s venerable Royal Society, are also
on board. Then there’s the media, which eagerly provide a platform and echo
chamber for the most terrifying apocalyptic scenarios the roosters can conjure
up: seas rising twenty feet to drown Manhattan, the Netherlands and Bangladesh;
a shutdown in “thermohaline convection” in the oceans to plunge
Europe into a new ice age; multiplying hurricanes and tornadoes; an end to
polar bears; a vast increase in malaria, dengue fever; Ebola virus, and a
cornucopia of other diseases. (p. 18)
No
sooner had I read that and recalled the surfeit of anti-man movies that have
been made over the decades, including several of the most recently and tackily
produced ones released on Netflix, than on the next page I read this:
The most far-out speculation of
all comes from researchers at Pennsylvania State University [together with
NASA], who suggest rising greenhouse emissions could tip off aliens that we are
a rapidly growing threat to the universe and lead them to take drastic action
against Earth before the threat escalates further. (Brackets mine)
Shades
of that “classic,” The Day the Earth Stood Still.
Wanting to see that for myself, I looked up the headlines in Isaac’s endnotes,
and, low and behold, there it was. See for yourself here
and here.
Perhaps equally bizarre was Al “Hockey Sticks” Gore, yelling in his
best “Godzilla” voice, recently saying that climate change deniers
should be shunned like “racists.”
In
this chapter, Isaac covers but briefly the whole “ClimateGate”
scandal surrounding the University of East Anglia and its manufactured data,
together with the doctoring of the IPCC’s 1996 report on global warming. The
revelations contained in the hacked East Anglia emails between British and
American “climate scientists” ought to have served as coffin nails in
the AWG movement and its participants charged with fraud. For example, they
consciously suppressed all reference to the “Medieval Warm Period” in
its data collection because the data for that period did not conform to the a priori conclusions of the researchers,
whose agenda was political, not science-driven facts. This was aside from the
deliberately corrupted and manipulated data from other periods, including our
own. But because the U.N., various governments, and much of the
government-bankrolled scientific establishment had a vested interest in
continuing the falsehoods, the movement rolled on.
In
her chapter, “Apocalyptic Jazz,” Isaac writes:
Landes writes that past
apocalyptic prophecies have, without exception, been wrong. Of course, there’s
always a first time. But given that 100 percent failure record, surely the owls
deserve a hearing. The owls contend that natural cycles shaped by sun and sea
play a far more important role than greenhouse gases in determining global
temperature. They say variation in the sun’s energy output correlates better
with the Earth’s temperature over time than do carbon dioxide levels. (p. 31)
Indeed,
as Isaac notes later in her book, rises in carbon dioxide levels do not
necessarily cause any temperature fluctuations, up or down, in the atmosphere.
Isaac
has chapters on the costs of “renewable energy” projects and
programs, the attrition among AWG supporters who are having belated second
thoughts about the credibility and costs of such programs, how Europe has
enfeebled itself by mandating that such programs be integrated into existing
energy sources, with the aim of making countries completely dependent on renewable,
and what’s in store for the U.S. if we do not “rethink” the costs of
the same programs and killing all capacities of coal, natural gas, and nuclear
power sources (which would indeed be catastrophic, propelling the country back
to pre-Industrial Revolution standards of living, which environmentalists would
also object to, provided they could communicate their objections by horse or
shoe leather; but then we’d hear from the animal rights brigades).
I
highly recommend Rael Isaac’s book as a primer on the whole AWG scam. She has
packed so much important information in so few pages that one can’t help but become
a card-carrying “owl.” I also recommend that readers question the
motives of those caring environmentalists who want to “save the planet,”
because if more people grasped their nihilistic means and ends, we would have a
better chance of preventing the collapse of Western civilization.  
And
then my short story about the caveman won’t become prophetic at all.
Roosters
of the Apocalypse: How the Junk Science of Global Warming is Bankrupting the
Western World
,
by Rael Jean Isaac. Washington DC: Bravura Books, 2013. 119 pp.

The Guardian of Every Other Right: Part II

“Intellectual freedom cannot
exist without political freedom; political freedom cannot exist without
economic freedom; a free mind and a free market are corollaries.” – Ayn Rand, 1963*
In
Part One of this review of James W.
Ely, Jr.’s book, The
Guardian of Every Other Right
, I began:
At the end of Ayn Rand’s
prophetic 1957 novel, Atlas Shrugged,
a judge who is on strike with other producers against a future, nightmarish
state of America (echoes of Obama) and has disappeared with them into a Rocky
Mountain sanctuary, is at work. Before him is a “copy of an ancient
document [the Constitution]. He had marked and crossed out the contradictions
in its statements that had once been the cause of its destruction. He was now
adding a new clause to its pages: ‘Congress shall make no law abridging the
freedom of production and trade…'”
At
the end of Part One, I concluded:
…[T]he absence of a distinction
between “personal” and “property” rights in the premises of
the framers underscores Rand’s dictum about the integration of political,
economic and intellectual freedoms. Only the framers never quite put it so
succinctly. One almost wishes she had attended the Convention to instruct them
on that point.
James
Ely wrote that James Madison, a champion of property rights, wanted to ensure
the protection of property rights, and drafted a proposed statement to be
attached to the Constitution.
That government is instituted,
and ought to be exercised for the benefit of the people; which consists in the
enjoyment of life and liberty, with the right of acquiring and using property,
and generally of pursuing and obtaining happiness and safety.” Perhaps
thinking that the purposes of government were self-evident, Congress did not
accept this declaration. (p. 54)
But
outside the enumerated powers granted to Congress, many men did not think it
was so self-evident what the purposes of the government were. Thus the fierce
debate for and against a bill of rights in the ratification period. Ely
provides further evidence of Madison’s linking liberties with property rights
when the Founder drafted the Fifth Amendment:
The amendment provides in part
that no person shall be “deprived of life, liberty, or property, without
just compensation.” Madison’s decision to place this language next to
criminal justice protections, such as the prohibitions against double jeopardy
and self-incrimination, underscored the close association of property rights
with personal liberty….Like all of the Bill of Rights, however, these
safeguards for property were binding only on the federal government. (p. 54)
No
sooner had the Constitution with the appended Bill of Rights been ratified in
November 1791, and circulated among the states, than lawsuits were filed citing
the “takings
(or compensation) and contract
clauses in the Constitution relating to state legislative powers.  
In
Part One of this review, I noted that
Ely reveals that the chief violator of property rights was not the young
federal government, but the states. In his chapter, “The Development of
Property Rights in the Antebellum Era, 1791-1861,” Ely documents the
persisting conflicts between the federal government and states. The federal
government was largely barred from interfering with “states’ rights”
to regulate the states’ internal business and economic activity:
Indeed, state governments were
the primary source of economic regulation throughout the nineteenth century.
The authority of the states to regulate the use of property was derived from
both common law principles and the police power. The common law doctrine of
public necessity and nuisance both subordinated the rights of property owners
to the interests of the general community. Under the public necessity doctrine,
for instance, it was lawful to destroy buildings to prevent the spread of fire
or pestilence. (pp. 59-60)
The
states still retain such discretionary “police power” to this day. For
example, gambling, alcohol sales and/or consumption, the advertising of certain
professional services, and prostitution are the subjects of restrictions or
outright bans. Today, state “police powers” more or less follow
federal and national trends. For example, outgoing Virginia governor Tim Kaine,
a Democrat (and now a U.S. senator), signed a state law that banned smoking in
all Virginia restaurants and private business establishments, including private
clubs and bars, at the behest of a tenacious anti-smoking lobby. Violation of
the law carries heavy financial penalties for both establishments and
individuals, and not to the exclusion of arrest. The banning of smoking in
private venues such as restaurants, bars, parks, and clubs represented a
“taking” without compensation to property owners.
 Many states, notably Kansas, are technically
“dry” states, but allow “local jurisdictions” or counties to
permit the sale and/or consumption of alcohol as long as they establish liquor
boards and issue licenses to sell liquor “by the glass,” in bulk, or
to manufacture and sell alcohol, or to serve it in restaurants or bars. Such
laws also provide for state or local inspections of premises or production. Many
states also have granted themselves exclusive monopolies to sell
“hard” liquor; in Virginia, on the other hand, “soft”
liquor, such as beer and wines, is regularly sold in supermarkets with the only
restriction being sales to state-defined minors (many also contain age
restrictions on sales of tobacco to minors).
Prostitution
is illegal in some Nevada counties (e.g., in Clark County, which includes Las
Vegas), and tolerated in others without outright prohibition, sanction,
ordinance, or licensing, and brothels exist in those localities more or less on
local sufferance. The Las Vegas telephone directory, on the other hand, carries
numerous ads advertising “escort/dating services,” a euphemism for
prostitution agencies.
Ely
writes about state regulatory powers:
A more potent source of
regulatory authority was the general legislative power retained by the states.
The bounds of such legislative capacity was [sic] described by the awkward phrase “police power.” The
scope of the police power proved incapable of precise delineation, but it
traditionally included the authority to protect public safety, health, and
morals by appropriate laws. State legislatures relied on the police power as a
basis for regulating economic activity in their jurisdiction, restrained only
by congressional control of interstate commerce and the property clauses of
federal and state constitutions. The exercise of state police power frequently
raised constitutional issues. (p. 60)
In
many states before the Civil War, especially the southern states, but also
including many northern states, slaves were treated as rightless property but
used in population apportionment calculations to ensure representation in
Congress. Ferocious arguments roiled on whether or not to count a slave as a
whole person, or a fraction of one for purposes of property taxation, census
taking and apportionment ends. Ely notes that slaves were regarded as the
property of whoever bought, owned or sold them:
Slave property was also
increasingly regulated in the years before the Civil War. Slaves were a form of
personal property and represented a major source of wealth in the antebellum
South. Owners were not legally at liberty to treat their slaves as they saw
fit. Southern lawmakers recognized that slaves were human beings and enacted
legislation that outlawed the killing or maiming of slaves by their master.
Fearing the growth of a free black population, states passed statutes
restricting the right of masters to free their slaves. Such laws deprived the
owners of the right to dispose of their slave property. (p. 61)
In
colonial Virginia, a planter or slave owner was not permitted to free his
slaves en masse, but only one at a
time, and this was possible only if he could get a bill introduced in the
General Assembly and have his burgess shepherd it through the committee, debating,
and voting process. If the bill survived that process, it was sent to the
Governor’s Council, where the formalities were repeated. Finally, if the bill
was approved by the Council, it had to be signed by a Crown-appointed royal governor,
who also had veto powers. After the Revolution, this practice carried over into
state laws by default or in defiance of a proposed federal ban on the
importation of slaves to take place in 1808.
However,
the Gates of Vienna
blog site found this interesting tidbit:
The importation of slaves into
Virginia was made illegal by [Governor] Patrick Henry in 1778, a petition by
the House of Burgesses having been rejected in 1772 by King George:
“Resolved, that an humble address
be prepared to be presented to his Majesty, to express the high opinion we
entertain of his benevolent intentions towards his subjects in the colonies,
and that we are thereby induced to ask his paternal assistance in averting a
calamity of a most alarming nature; that the importation of negroes from Africa
has long been considered as, a trade of great inhumanity, and under its present
encouragement may endanger the existence of his American dominions; that
self-preservation, therefore, urges us to implore him to remove all restraints
on his Governors from passing acts of Assembly which are intended to check this
pernicious commerce”.
One can only be astounded by the
prescience of the good burghers of Williamsburg. Could they see into the
future? Could they understand the racial melee that would result from slavery?
The inability of the 21st century Virginia to reject Islam because of the
disgraceful but undeserved stigmas of ‘slavery’ and ‘racism’?
It is significant that King
George rejected this 1772 petition. He was making an awful lot of money through
the transportation of slaves; the truth of history is that the State of
Virginia was the first legislature in the world to ban the importation of
slaves.
But
unfortunately could not emancipate existing slaves in Virginia, it being a
slave state. Thomas Jefferson also regretted that the slavery issue would not
be resolved in his lifetime. He
predicted
that there would be a civil war over the issue.
Jefferson wrote that slavery was
like holding “a wolf by the ear, and we can neither hold him, nor safely let
him go.”  He thought that his cherished federal union, the world’s first democratic
experiment, would be destroyed by slavery.  To emancipate slaves on
American soil, Jefferson thought, would result in a large-scale race war that
would be as brutal and deadly as the slave revolt in Haiti in 1791.  But
he also believed that to keep slaves in bondage, with part of America in favor
of abolition and part of America in favor of perpetuating slavery, could only
result in a civil war that would destroy the union.  Jefferson’s latter
prediction was correct: in 1861, the contest over slavery sparked a bloody
civil war and the creation of two nations—Union and Confederacy—in the place of
one.
The
Confederate states seceded from the Union over the federal government’s
interference in states’ rights, one of which they claimed was their sovereignty
over the issue of slavery.
Ely
discusses in this chapter the conflicts and cases reviewed by the Supreme Court
and other federal courts between federal and states’ powers concerning property
rights.
Looking to the precepts of
natural law [i.e., largely Lockean law] rather than any specific clause of the
Constitution, some federal judges adopted the doctrine of vested rights to
protect established property rights from legislative interference. According to
the doctrine of vested rights, property ownership was a fundament right. Laws
that disturbed such rights were void because they violated the general
principles limiting all constitutional governments. Justice William Paterson
articulated this view in the significant circuit court case of VanHorn’s Lessee v. Dorrance (1795).
Observing that “the right of acquiring and possessing property, and having
it protected, is one of the natural, inherent and inalienable rights of
man.” Paterson added, “The preservation of property…is a primary
object of the social compact.” (p. 63)
With
the appointment of John Marshall as chief justice of the Supreme Court in 1801,
Ely writes, the Court embarked, with few lapses, upon a property-rights
preserving course for the next three decades.
…Marshall was sympathetic to
property interests and business enterprises. He distrusted state interference
with economic relationships. To Marshall, property ownership both preserved
individual liberty and encouraged the productive use of resources….The contract
clause
, little debated at the constitutional convention, emerged as the
centerpiece of Marshall Court jurisprudence….In the words of one scholar,
Marshall made the contract clause a “link between capitalism and
constitutionalism.”  (p. 63)
One
of Marshall’s lapses occurred over a taxation issue. He sided with the state’s
right to tax a corporation, in this instance a bank charter document which did
not exempt the bank from state taxation.
Stressing that taxing authority
“is essential to the existence of government,” he rejected the
contention that a tax on the corporation’s capital stock impaired the
obligation of contract. Significantly, Marshall added that the Constitution
“was not intended to furnish the corrective for every abuse of power which
may be committed by the state governments.” This ruling established the
principle that grants of privileges and exemptions to corporations must be
expressly set forth in the charter. (p. 67)
Ely
notes that in the nineteenth century, “the contract clause figured in more
Supreme Court decisions than any other section of the Constitution.”
Marshall’s rulings were not universally popular.
Most of the criticism, however,
emanated from adherents of the states rights political philosophy who were
alarmed at [sic] the alleged
encroachments on state power. There was little hostility to Marshall’s core
belief that the federal courts should safeguard established economic rights.
(pp. 67-68)
The
framers of the Constitution sought to bring order to the chaos that existed because
of Crown laws that regulated commerce and trade between the colonies, aggravated
by colonial legislatures’ own laws. Thus, the “commerce clause
came into more contention between the federal and state governments.
The Commerce Clause refers to Article
1, Section 8, Clause 3 of the U.S. Constitution
, which gives Congress the
power “to regulate commerce with foreign nations, and among the several states,
and with the Indian tribes.”
The Constitution enumerates
certain powers for the federal government; the Tenth
Amendment
 provides that any powers that are not enumerated in the
Constitution are reserved for the states.
The Commerce Clause has
historically been viewed as both a grant of congressional authority and as a
restriction on states’ powers to regulate. The “dormant” Commerce Clause refers
to the prohibition, implied in the Commerce Clause, against states passing
legislation that discriminates against or excessively burdens interstate
commerce.  The meaning of the word “commerce” is a source
of much of the controversy.  The Constitution does not explicitly define
the word.  Some argue that it refers simply to trade or exchange, while
others claim that the founders intended to describe more
broadly commercial and social intercourse between citizens of different
states. Thus, the interpretation of “commerce” affects the
appropriate dividing line between federal and state power.
Ely
notes that the commerce clause was little used or paid attention to by Congress
in the antebellum period. “Trade between the states increased markedly,
however, the state regulatory legislation inevitably affected the movement of
persons and goods across state lines.” Again, it was an issue of state
“police powers” versus what the Constitution enumerated as a federal
power. In virtually all the cases Ely discusses in this chapter, the Supreme
Court sided with the federal government’s claim to regulate commerce across the
board, and usurped state governments’ presumption of that regulatory
“right.”
Today,
however, the term “regulate” is understood to mean the power of especially
the federal government to micromanage any business, regardless of the state,
and to set and police the prices, conditions, and venues of business enterprises.
Eminent domain, or the state power to confiscate
or seize property (usually land) for state projects such as roads, dams, canals,
lighthouses, and fortifications, and even private railroads also received little
attention at the convention and afterward. Ely writes:
Unlike the contract clause and
the commerce power, the use of eminent domain to take private property did not
receive much attention from the federal courts before the Civil War. The Constitution
makes no direct reference to the power of eminent domain, but the Fifth
Amendment requires that private property be taken only for “public
use” and on payment of “just compensation.” Eighteenth-century
judicial thinking was heavily influenced by natural law doctrine. (p. 76)
Often,
particularly in the south, Ely writes, the state government did not directly
seize land or property, but granted a private company the right and power to do
so, if the state had a vested interest in “public improvements” that
would benefit a state’s economy. Victims of eminent domain had little chance of
winning a lawsuit, because state courts usually upheld any eminent domain
arrangement, and federal courts as a rule danced around the issue.
The
most recent and memorable instance of the Supreme Court addressing a state’s
power of eminent domain was the Court’s siding in 2005 with the state of Connecticut
in Kelo v. City of New London. According
to the New York Times in a 2009 story, “Pfizer to
Leave City That Won Land-Use Case
,” the City of New London reached a
deal with the giant pharmaceutical company, Pfizer, to develop some land in the
city to erect a “multi-use” mall. The city condemned perfectly
habitable homes under eminent domain:
Economic development officials in
Connecticut used that plan — and a package of financial incentives — to lure
Pfizer to build a headquarters for its research division on 26 acres nearby.
With an agreement that it would pay just one-fifth of its property taxes for
the first 10 years, Pfizer spent $294 million on a 750,000-square-foot complex
that opened in 2001….
Ms. Kelo lived in a small pink
house in the Fort Trumbull section that was square in the sights of city and
state officials who wanted to revitalize the area. The city had created the New London
Development Corporation
to buy up the nine-acre neighborhood and find a
developer to replace it with an “urban village” that would draw shoppers and
tourists to the area….
In a 5-to-4 decision,
the high court ruled that it was permissible to take private property and turn
it over to developers as part of a plan to bolster the local economy.
Conservative justices, including Clarence Thomas, dissented.
Justice Thomas called New London’s plan “a costly urban-renewal project whose
stated purpose is a vague promise of new jobs and increased tax revenue, but
which is also suspiciously agreeable to the Pfizer Corporation.”
But
Pfizer changed its mind. It left New London, and left behind the flattened,
ploughed land that was once dotted with private homes. Fox News on March 20th
reported on the land in “Seized
property sits vacant nine years after landmark Kelo eminent domain case
.”
In all cases cited by Ely, the decision endorsing the power of eminent domain
was based on altruistic premises such as the “public good” or to
boost the “local” or state economy.
Part Three of this review will move on the
post-Civil War “Gilded Age and the Challenge of Industrialization.” This
era saw the beginning of the disintegration of any protection of property rights.
The
Guardian of Every Other Right: A Constitutional History of Property Rights
, by James W. Ely, Jr .. New
York: Oxford University Press, 2007. 216 pp.
*From
“For the New Intellectual,” in For
the New Intellectual
: The Philosophy of Ayn Rand
, by Ayn Rand. New
York: Signet, 1963. 224 pp.  p. 25.

The Guardian of Every Other Right: Part I

“Intellectual freedom cannot
exist without political freedom; political freedom cannot exist without
economic freedom; a free mind and a free market are corollaries.” – Ayn Rand, 1963*
At
the end of Ayn Rand’s prophetic 1957 novel, Atlas
Shrugged
, a judge who is on strike with other producers against a future,
nightmarish state of America (echoes of Obama) and has disappeared with them
into a Rocky Mountain sanctuary, is at work. Before him is a “copy of an
ancient document [the Constitution]. He had marked and crossed out the
contradictions in its statements that had once been the cause of its
destruction. He was now adding a new clause to its pages: ‘Congress shall make
no law abridging the freedom of production and trade…'”
I
am sure that Rand scoured the Constitution for its virtues and flaws, and very
likely read books on its history. But I am not so certain she ever did a study
of state constitutions. One of the
contradictions she does not allude to
in the novel is the authority which that “ancient document” bestowed
on the states at ratification to “regulate” their economies,
production, and trade, which power the federal government was prohibited, in
many instances, from interfering with. Had that issue occurred to Judge
Narragansett, he might have added another clause: “Congress shall have the
power to nullify states’ laws abridging the freedom of production and trade
within their boundaries….”  Or words
to that effect.
James
W. Ely, Jr., wrote a gem of a history of the Constitution that focuses almost
exclusively on the treatment of property rights, from colonial times to the
present, The Guardian of Every Other
Right: A Constitutional History of Property Rights
.  It is one of the handiest and briefest digests
of the history of property rights vis-à-vis federal and state courts and
legislative acts I’ve come upon, written in clear, succinct language. For
anyone imbued with the ambition to tackle The
Federalist
, the Constitutional Convention debates, and the papers of
Founders such as Thomas Jefferson, James Madison, and Alexander Hamilton, Ely’s
book can serve as a nonpareil introduction to the subject of property rights in
a political context.
Ely
underscores on virtually every page that not only was Congress guilty of
violating individuals’ property rights by abridging the freedom of production
and trade, but that, for the longest time, it was the states that were the
greater and more frequent violators and usurpers.  
The
National
Archives
reveals just how contentious ratification was over the necessity
of a Bill of Rights, together with the states claiming sovereignty over what
transpired within their boundaries:
…Federalists argued that a
catalogued list might be incomplete and that the national government was so
constrained by the Constitution that it posed no threat to the rights of
citizens. Ultimately, during the ratification debate in Virginia, Madison
conceded that a bill of rights was needed, and the Federalists assured the
public that the first step of the new government would be to adopt a bill of
rights….
The first real test for
ratification occurred in Massachusetts, where the fully recorded debates reveal
that the recommendation for a bill of rights proved to be a remedy for the
logjam in the ratifying convention. New Hampshire became the ninth state to
approve the Constitution in June, but the key States of Virginia and New York
were locked in bitter debates. Their failure to ratify would reduce the new
union by two large, populated, wealthy states, and would geographically
splinter it. The Federalists prevailed, however, and Virginia and New York
narrowly approved the Constitution. When a bill of rights was proposed in
Congress in 1789, North Carolina ratified the Constitution. Finally, Rhode
Island, which had rejected the Constitution in March 1788 by popular
referendum, called a ratifying convention in 1790 as specified by the
Constitutional Convention. Faced with threatened treatment as a foreign
government, it ratified the Constitution by the narrowest margin (two votes) on
May 29, 1790.
Ely
provides an insight into why property rights (though he does not explicitly
name it), initially and largely protected and upheld in the first half-century
of the republic by the Supreme Court, and especially by Virginian John Marshall, the fourth
Chief Justice of the Supreme Court (1800-1835), began to be whittled away in
conflicts between the federal and state governments, and between an individual
and either the federal or state governments. In virtually every case Ely
recounts, the cited moral basis for upholding property rights was a
collectivist one: It was to serve “the public interest,” a
“public purpose,” a “public benefit,” the “public
interest,” the “interests of the community,” and for
“public order and safety.” In no case he reviews and discusses does
he report that individual rights were inviolate and absolutely inalienable, or
that such rights were in the forefront of court decisions. Individual rights,
even though they were alluded to in other terms, were a secondary consideration
when deliberating on the constitutionality of a rights violation, and had to
defer to the commonweal or a public collective if absolutely necessary.
The
Founders, and even John Marshall, for all their brilliance and fealty to
freedom, were still hampered by errors and contradictions that would lead,
beginning roughly in the second half of the nineteenth century, to statism and
tyranny.
Ely
warns us in his Introduction about the role of the Supreme Court in upholding
property rights:
…[T}he Supreme Court’s historic
role of supporting economic rights has sometimes generated allegations of class
bias, sentiments that have been echoed by subsequent commentators. “The
federal courts,” one scholar charged, “have through most of the
country’s history been the guardians of wealth and property against the
excesses of democracy….”
But at no time has the Court
blocked all regulatory or redistributive legislation or sought to impose a
strict laissez-faire régime. Furthermore, judicial review of economic and social
legislation, such as health and safety regulations, has not always resulted in
rulings favorable to business interests. (p. 5)
In
his chapter, “The Origins of Property Rights: The Colonial Period,”
Ely traces the beginnings of individual property rights in America, largely
rooted in English common law. Stemming from the notion of “quitrents,
annual payments to the king or overlord, Feudal in origin, the quitrent was
regarded as a form of taxation,” with the Crown regarding all property as
its own and its inhabitants and developers treated as mere stewards of the
property. But in the vast area of North America, this practice was not only
resented, but impractical. Even so, Ely relates:
Colonial appreciation of property
rights was strongly shaped by the English constitutional tradition. Americans
associated property rights with the time-honored guarantees of Magna Carta
(1215). Originally forced on a reluctant King John to protect the privileges
and property of the nobility, Magna Carta became a celebrated safeguard against
arbitrary government. Several important provisions of the Great Charter
protected the rights of property owners. (pp. 11-13)
Ely
cites the influences of John Locke’s Second
Treatise on Government
(1689) and various Whig theorists on the development
of natural law and William Blackstone’s Commentaries
on the Laws of England
(1765-1769) discourse which links natural and
common law.
“So great moreover,”
Blackstone observed, “is the regard of the law for private property, that
it will not authorize the least violation of it.” Whig political thought
profoundly shaped public attitudes in colonial America, and Blackstone’s Commentaries were widely studied as a
summary of English law. Consequently, both their circumstances and
philosophical heritage induced the colonists to affirm the sanctity of property
rights. (p. 17)
Moving
to the Revolutionary Era, Ely cites a crucial assertion about the sanctity of
property rights:
Throughout the revolutionary era,
Americans emphasized the centrality of the right to property in constitutional
thought. “The right of property,” Arthur Lee of Virginia declared [in
1775], “is the guardian of every other right, and to deprive a people of
this, is in fact to deprive them of their liberty.” (p. 26)
Lee’s
statement implicitly concurs with Rand’s statement that without economic
freedom – which would include property and the freedom to dispose of it without
government leave – there can be no intellectual or other freedom. Political,
intellectual, and economic freedoms are trilaterally codependent; to deny one
freedom is to abridge or destroy the other freedoms.
That
idea is at variance with the notion of a republican (as opposed to a
democratic) form of government. Ely wrote:
To newly independent Americans,
respect for economic rights did not encompass unfettered liberty to use
property in any manner. The theory of republicanism, influential during the
revolutionary era, subordinated private interests to the pursuit of public
welfare. As one historian [Gordon S. Wood, cited in an end note] observed,
“The sacrifice of individual interests to the greater good of the whole
formed the essence of republicanism.” Consequently, republicanism
justified the regulation of private economic interests to promote the common good.
The notion of the general welfare embodied in the republican ideal sometimes
clashed with the rights of individual property owners and the growing ideology
of a free-market economy. (p. 33)
From
the very beginning, altruism, or the sacrifice of the individual to the
collective, adulterated the concept of property rights. The error was fatal and
would influence the course of the republic for generations to come. In doing
so, it would also work to diminish the security of the other two freedoms.
Another
fatal error was committed when Thomas Jefferson (and his editors, Benjamin
Franklin, John Adams, Roger Sherman, and Robert Livingston) omitted property
from the unalienable rights of “Life, Liberty, and the pursuit of
Happiness” in the second paragraph of the Declaration
of Independence
. Some interpreters have argued that “pursuit of
happiness” was a calculated euphemism for property suggested by one of
Jefferson’s editors, either Adams or Franklin.
Many
delegates to the Continental Congress were recalcitrant slave-holders who
regarded their slaves as property not to be seized, taxed as property, or
manumitted by the new government. Their support for the independence movement
was crucial in order to reach unanimity in the colonies’ bid for political
independence. Other delegates refused to include slaves as property. Jefferson
and his editors compromised and settled on “pursuit of happiness,” leaving
out a whole section that condemned slavery. (See Jefferson’s penultimate draft here,
which contains the omitted section on slavery.)
The
southern states, as Ely writes in most of the following chapters of The Guardian, exerted inordinate
influence on the status of property rights in the country over the next century
and a quarter.
Ely
records the development of property rights in his chapter, “Property Must
Be Secured.”
Harboring little faith in the
people, the framers [at the Constitutional Convention of 1787] were not
democrats in any modern sense. Indeed, they viewed popular government as a potential
threat to property rights. The convention debates were held in a high
intellectual level. Dominated by northern merchants, southern planters, and
lawyers, the delegates for the most part were wealthy individuals. This fact
has caused some historians to contend that the framers’ property-conscious
attitude reflected their economic self-interest. Although one can never
entirely dismiss economic motives, such an analysis seems unduly simplistic, as
it does not give enough attention to the philosophical climate that helped
define the framers’ constitutional outlook. (pp. 42-43)
The
historians Ely mentions (but doesn’t name, although I’m familiar with a few of them)
obviously subscribed to the notion that a dichotomy must exist between a value
one fights for and one’s potential, personal gain from that value. Therefore, the
motives of the framers are dubious and questionable. The fight for liberty must
be “platonic,” and not sullied by any selfish personal gain one might enjoy in a state of liberty. Enemies of
liberty in later periods exploited that “platonic” division and
championed the denigration of property rights. Again, altruism rears its ugly
head.  
Consistent with the Whig
tradition, the framers did not distinguish between personal and property
rights. On the contrary, in their minds, property rights were indispensable because
property ownership was closely associated with liberty. “Property must be
secured,” John Adams proclaimed in 1790, “or liberty cannot
exist.” (p. 43)
Again,
the absence of a distinction between “personal” and
“property” rights in the premises of the framers underscores Rand’s
dictum about the integration of political, economic and intellectual freedoms. Only
the framers never quite put it so succinctly. One almost wishes she had
attended the Convention to instruct them on that point.
Part Two of the review of James Ely’s
book will continue with “Property Must Be Secured,” move on to the
antebellum period, note what changes occurred during and after the Civil war in
regards to property rights, reveal the role of the advocacy of “states’
rights,” and discuss the gradual but inexorable near-destruction of
property rights in the 20th century.
The
Guardian of Every Other Right: A Constitutional History of Property Rights
, by James W. Ely, Jr .. New
York: Oxford University Press, 2007. 216 pp.
*From
“For the New Intellectual,” in For
the New Intellectual
: The Philosophy of Ayn Rand
, by Ayn Rand. New
York: Signet, 1963. 224 pp.  p. 25.

Creeping Towards Oceania

Three
news items appeared recently, back-to-back, which is too creepily coincidental.
And the creepers are wearing squeaky shoes made in George Orwell’s totalitarian
state of Oceania, in Nineteen Eighty-Four,
so one can hear them make their way to your computer and front door. The
coincidence may only be happenstance, but when the subject is calls for
censorship, it should trigger alarm bells.
On
May 5th, Tim Cushing of TechDirt reported that the federal
government is experimenting with mandatory “driver’s licenses” for
Internet users in Michigan and Pennsylvania. On May 6th, the
Washington Post ran an article in its Religion section by a fellow I’d never
heard of before, Omar Sacirbey, who suggested that Sharia gags should be imposed
on Internet speech to prevent “hate speech.” And, on May 7th,
in a Washington Examiner article, Paul Bedard reported that the chairman of the
Federal Election Commission (FEC) warned that the sentiment in the federal
government is to classify “conservative” Internet sites and talk
shows as Political Action Committees (PACs) and to regulate what they say and
perhaps when they say it.
All
three articles, of course, simply report the presence of Ninja censors in our
midst. Pamela
Geller
of Atlas Shrugs broke the Sacirbey
story
that appeared in the Post, but one must read the original story to
believe the brazenness of the suggestion. And not be startled by the goofy
photograph of Omar Sacirbey, who looks like he’s gritting his teeth in
expectation that Geller is about to deliver a roundhouse that will knock him
flat on his keester, or posing for a “Big Brother is Watching You”
poster. Creepy.
 Tim Cushing of TechDirt
wrote:
An idea the government has been kicking around since 2011 is finally making its debut.
Calling this move ill-timed would be the most gracious way of putting it.
A few years back, the White House
had a brilliant idea: Why not create a single, secure online ID that Americans
could use to verify their identity across multiple websites, starting with
local government services. The New York Times described it at the time as a “driver’s
license for the internet.”


Sound convenient? It is. Sound scary? It is.

Next month, a pilot program of the “National Strategy for Trusted Identities in Cyberspace
will begin in government agencies in two US states, to test out whether the
pros of a federally verified cyber ID outweigh the cons.
The NSTIC program has been in
(slow) motion for nearly three years, but now, at a time when the public’s
trust in government is at an all time low, the National Institute of Standards
and Technology (NIST — itself still reeling a bit from NSA-related blowback) is testing the
program in Michigan and Pennsylvania.
Cushing
writes that there is a catch.
But the program isn’t strictly
limited to government use. The ultimate goal is a replacement of many logins
and passwords people maintain to access content and participate in comment
threads and forums. This “solution,” while somewhat practical, also
raises considerable privacy concerns….
Beyond the privacy issues (and
the hints of government being unduly interested in your online activities),
there are the security issues. This collected information would be housed
centrally, possibly by corporate third parties. When hackers can find a wealth
of information at one location, it presents a very enticing target. The
government’s track record on protecting confidential information is hardly encouraging.
The problem is, ultimately, that
this is the government rolling this out. Unlike corporations,
citizens won’t be allowed the luxury of opting out. This “internet
driver’s license” may be the only option the public has to do things like
renew actual driver’s licenses or file taxes or complete paperwork that keeps
them on the right side of federal law. Whether or not you believe the government’s
assurances that it will keep your data safe from hackers, keep it out of the
hands of law enforcement (without a warrant), or simply not look at it just
because it’s there, matters very little. If the government decides the
positives outweigh the negatives, you’ll have no choice but to participate.
And
government, as we all know, is always fishing for “positive” reasons
to expand its power over the citizenry. Its legions of bureaucrats and wonks
must have something to do, and what better way to exploit them than to put them
to work rummaging for schemes to serve the “public good”? Or hire new
wonks to complete the task? All sorts of white papers and committee studies
will be generated by the two-state “experiment.” Politicians in Congress,
in committee meetings and on the floors of the Senate and House, will quote
from them in somber tones, invoking national security.
Cushing
writes that, in lieu of the Michigan/Pennsylvania experiment, the “government
believes this ID system will help reduce fraud and overhead, by eliminating
duplicated ID efforts across multiple agencies.” Multiple agencies? So,
Social Security numbers, Tax ID numbers, vehicle identification numbers,
license plate numbers, permit-to-carry-concealed numbers, and all those other mandatory
numbers aren’t enough; the feds want to integrate them all in another database
that will link them to your new Internet ID number.
“Grandma!
What big eyes, ears, and teeth you have!”
 “The better to see, listen to, and eat
you, my dear.”
Next
thing you know, they’ll want to know your shoe size, your daily caffeine
intake, and who you voted for. Farewell, privacy.
Pamela
Geller rips into Omar Sacirbey’s Washington Post column (she can be read here)
pointing out the inaccuracies, fabrications, and illogic in the article. Sacirbey
wrote in his May 6th article:
Anti-Muslim hate speech on the
Internet is commonplace and can motivate some people to commit acts of violence
against Muslims, according to a report released Tuesday (May 6) by Muslim
Advocates, a legal and advocacy group in San Francisco.
“When you have threatening
comments online and they go unchecked, people start thinking it’s acceptable,”
said Madihha Ahussain, an attorney and the report’s lead author. “And it
doesn’t take long to figure out that what becomes acceptable online becomes
acceptable in the real world.”
What
really pushed Geller’s buttons was a direct attack on her by both Sacirbey and
the non-entity, Madihha Ahussain of the Muslim Advocates, “a legal and
advocacy group in San Francisco.” Anyone familiar with Geller’s Atlas
Shrugs site knows that she threatens no one. What pro-Islam and pro-Sharia
readers feel threatened by is her commitment to and exposure of the truth about
Islam.
I
searched for the Muslim
Advocates
report, “Click Here to End Hate: Anti-Muslim Online &
How to Take Action” (May 2014), and found it here.
It discusses alleged “hate speech” against Muslims by public
officials, citing Peter King, Michele Bachmann, Trent Franks, Louie Gohmert,
Thomas Rooney, and Lynn Westmorland as expressing anti-Muslim bigotry (p. 8).
On page 10 of the report, Scott DesJarlais, U.S. representative from Tennessee,
is excoriated for having posted on his Facebook page his concerns about a
Muslim cemetery and mosque in Murfreesboro. On other pages are targeted
organizations such as Stop Islamization of America, the United States Defense
League, the Counter Jihad Report, and Bare Naked Islam. Geller and Robert
Spencer of Jihad Watch merited their own “Wanted Dead or Alive” page
(p. 14).
Brigitte
Gabriel and ACT! For America merited all of page 15. Overall, the document is
one long whine about how Muslims are persecuted in America. It contains
numerous suggestions of how offended Muslims can turn in anyone who commits
“hate speech” on the Internet, of how to turn informant to either
Facebook, Twitter, or other venue, or to the authorities. Its concluding
statement is:
The White House should convene a
national level dialogue on hate against religious communities [namely, Islam
and Muslims] and invite Internet companies to participate in discussions
addressing online hate. (p. 37; bracketed remark mine)
In
short, the report is calling for stealth or outright censorship, mandated by
the federal government, and farmed out to Internet companies.
To
return to Omar Sacirbey, The Counter
Jihad
Report on March 14th published an article on him, citing
his Washington Post screed, together with a link to Robert Spencer’s Jihad
Watch rebuttal
to Sacirbey’s assertions in another Washington Post article of March 12th,  Anti-Muslim
speakers still popular in law enforcement training
.” Sacirbey
triumphantly crowed:
Law enforcement officers in
Virginia will no longer receive credit for a counterterrorism course taught by
a former FBI agent [John Guandolo] and anti-Muslim activist after the academy
where the course was taught canceled its accreditation the day is was scheduled
to begin.
How
did that come about? Sacirbey quotes two “authorities” on “hate
speech”:
“His views on Islam are the
equivalent of historical anti-Catholic and anti-Semitic falsehoods,” said Corey
Saylor, national legislative director for the Council on American-Islamic
Relations, wrote in a letter to Jenkins [Culpeper County Sheriff Scott Jenkins].
“Guandolo offers only his own prejudiced and inaccurate conspiratorial views,
not solid counterterrorism training.”
The Southern Poverty Law Center
calls Guandolo “a notorious Muslim-basher and conspiracy theorist.”
Given
the criminal record of Islam’s “foot soldiers” in their war against
the West and the plots concocted by their commanders to kill and destroy, this
is tantamount to Al Capone accusing Eliot Ness of being a “notorious
gangster-basher and anti-crime conspiracy theorist.”
Paul
Bedard’s article in the Washington
Examiner
, “FEC chair warns that conservative media like Drudge Report
and Sean Hannity face regulation – like PACs,” quotes the FEC head:
 Government officials, reacting to the growing
voice of conservative news outlets, especially on the internet, are angling to
curtail the media’s exemption from federal election laws governing political
organizations, a potentially chilling intervention that the chairman of the Federal
Election Commission
is vowing to fight.
“I think that there are impulses
in the government every day to second guess and look into the editorial
decisions of conservative publishers,” warned Federal Election Commission Chairman
Lee E. Goodman in an interview. “The right has begun to break the left’s media
monopoly, particularly through new media outlets like the internet, and I sense
that some on the left are starting to rethink the breadth of the media
exemption and internet communications,” he added.
Unlike
many non-profit sites that offer news and opinions, specific media have been
free to say whatever they wished, whenever they wished, without fear of
government retribution in the way of lawsuits or IRS audits.
All media has long benefited from
an exemption from FEC rules, thereby allowing outlets to pick favorites in
elections and promote them without any limits or disclosure requirements like
political action committees.
But Goodman cited several
examples where the FEC has considered regulating conservative media, including Sean Hannity‘s radio show and Citizens United’s movie
division. Those efforts to lift the media exemption died in split votes at the
politically evenly divided board, often with Democrats seeking regulation.
Here
again enter the role of “multiple agencies” collaborating in a
campaign to stifle freedom of speech. Bedard writes:
Liberals over the years have also
pushed for a change in the Federal Communications Commission‘s “fairness
doctrine” to cut off conservative voices, and retired Supreme
Court
Justice John Paul Stevens has delighted Democrats recently with a
proposed Constitutional amendment that some say could force the media to stop
endorsing candidates or promoting issues.
“The picking and choosing has
started to occur,” said Goodman. “There are some in this building that think we
can actually regulate” media, added Goodman, a Republican whose chairmanship
lasts through December. And if that occurs, he said, “then I am concerned about
disparate treatment of conservative media.”
On
the issue of campaign financing and free speech issues, in Part II of my Rule
of Reason column, “Justice
Stevens’s Liberty-Destroying Amendments
,” I wrote:
Stevens writes that there is
nothing to fear from his proposed amendment:
A constitutional amendment
authorizing Congress and the states to place “reasonable” limitations
on campaign expenditures would allow corporations to make public announcements
of their views but would prohibit them from engaging in the kind of repetitive
and excessive advocacy that the candidates typically employ. It would also
repudiate both the holding and the reasoning in the Citizens United case, giving corporations an unlimited right to
spend their shareholders’ money in election campaigns.
Stevens
then proposed a new amendment to the Constitution that would read:
Neither the First Amendment nor
any other provision of this Constitution shall be construed to prohibit the
Congress or any state from imposing reasonable limits on the amount of money
that candidates for public office, or their supporters, may spend in election
campaigns.
The
connection between “the editorial decisions of conservative
publishers” and the powers of Lee Goodman’s FEC is tenuous at best. But, rummage
for a connection, and ye shall find, no matter how imaginary it might be. Per Justice
Stevens’s metrics, conservative publishers can be defined as
“supporters,” and, regardless of their corporate status under IRS rules,
can be regulated in what they say and when, and perhaps even by how much money
they spend saying it. And whether or not they are “conservatives,” any
publisher can be defined as an FEC rule-breaking opponent of whatever statist
agenda a candidate may be promulgating, and be penalized, or receive an
injunction from the FEC or IRS against further speech on the subject.
Remember
that after Hitler’s ascendance to power in 1933, newspapers which criticized
him and the Nazi Party were vaporized and their editors and journalists
disappeared.  Sections One and Three of the
Nazi “editorial
law
” of October 1933 more or less presaged the means and ends of the
Democrats and the federal government:
Involvement in the shaping of the
intellectual contents of the newspapers or political periodicals published
in the Reich, whether through writing, news reporting, or illustration, or
through appointment as chief editor, is a public function, regulated by the
state through this law….
The Reich Minister of Public
Enlightenment and Propaganda will determine which periodicals are to [be] considered
political within the meaning of the law….
 All one need do is substitute the appropriate
terms with American ones and one will have an appendix to Stevens’s new American
Constitutional amendment.
These
were the squeaks. The stealth censors are a tat less cautious than they used to
be. They look forward to the day they can jump us and throw a black bag over
our heads.

Hollywood’s Selective “Islamophobia”

They
are rankled! Upset! Angry! Outraged! Gnashing their teeth! Balling their fists,
straining their massaged tendons, and cutting their palms with their manicured
nails! They’re really, really mad! It’s unconscionable! We won’t tolerate it! Their
Gucci knickers are in such a twist they have a hard time picketing and not
walking funny! We just won’t come here anymore!!! Take that, Sultan of Brunei!
How
dare the Sultan of Brunei, who owns some of our favorite party spots, want to
stone to death gays, and lesbians, and even transgenderites, and people of all
sixteen lifestyles who make whoopee outside marriage, or even if they’re not
married?? Our kinds of people!!!And
isn’t cutting off the hands of thieves just a bit harsh, damn it all? Over here, we let thieves off with a fine and a
warning. And that rule about no drinking??
Criminey! Unacceptable! No gambling?? That’s
criminal!!!
The
Clarion Project (which unfortunately is dedicated to “challenging
‘extremism’ and “promoting dialogue,” much as many of the Hollywood
protesters do), on May 7th reported:
As Clarion Project previously reported, as
of April 1, the first phase of sharia law went into effect in the
country. Eventually, punishments including the stoning to death for the crimes
of adultery, homosexuality and blasphemy and the amputation of limbs for theft
will be implemented.
Jay Leno, who participated in the
protest organized outside the hotel, said, “I’d like to think that all people
are basically good and that when they realize that this is going on, hopefully,
they will do something about it … I mean, it’s just … I don’t know. Berlin,
1933? Hello, does it seem that far off from what happened during the
Holocaust?”
Other celebrities and business
people are joining in the boycott, including comedians Stephen Fry
and Ellen DeGeneres, and TV host Sharon Osbourne. British billionaire
Richard Branson, owner of the Virgin Group, said in a tweet: “No
@virgin employee, nor our family, will stay at Dorchester Hotels until the
Sultan abides by basic human rights.” 
Jay
Leno, who at one point joined the protests, and speaking without cue cards and with
no big adoring audience hanging on his every punch line, mumbled his
incoherency about Berlin, and 1933, and the Holocaust. (He really shouldn’t say
anything in public without cue cards or a script.) But then his wife, Mavis,
has been after the women-brutalizing Taliban in Afghanistan for a long time.
But
women are brutalized by Sharia elsewhere in the world, as well, by Islam. Not
just in Afghanistan. Try the Sudan, and Libya, and Yemen, and Saudi Arabia, and
Iran, and Jordan, and Gaza, the West Bank, Pakistan, Nigeria, Indonesia,
Malaysia, the Persian Gulf emirates. And in the Netherlands, Germany, France,
Belgium, the U.K., Ireland, Scandinavia, Spain, Italy, all those former Soviet
Central Asian republics whose names end with “stan.” Austria. The
U.S. and Canada. And Australia.
The
Clarion Project pointed out this disparity between the outrage over Muslim
Brunei and instances of other Islamic nations that have investments in the U.S.
Christopher Cowdray, the chief
executive of the London-based Dorchester Collection of hotels owned by Brunei,
said it was unjust to single out the Beverly Hills Hotel and its employees.
“There are other hotel companies in this city that are owned by Saudi
Arabia … you know, your shirt probably comes from a country which has
human rights issues,” said Cowdray.
“This is misguided,”
Robert Anderson, the great-grandson of the founder of the hotel, told Reuters
after the vote. “We should be against human rights violations in all
countries, not just the Brunei.”
However,
the Sultan of Brunei’s wanting to turn his country into an Islamic prison is
nothing new. Islam has been practicing these things since long, long before
Brunei was a gleam in the eyes of the Sultan’s ancestors. Since the seventh
century.
So,
where were all these hair-tearing protesters forty years ago? Or when Islamic
terrorists began hijacking airplanes? Why do some of these same protesters run
Boycott Israel campaigns, and wish to see Israel torn from limb to limb? Why
are they just now becoming “conscious” of Sharia? Have they the
teeniest notion of how many hundreds of thousands of Muslims and non-Muslims
have been meted the harshest Islamic “justice” over the centuries?
Perhaps
not. While the mainstream media shies away from reporting honor killings,
rapes, murders, domestic terrorism and related Islamic activities just in this
country, the Internet is awash with news sites that do report these things.
Hollywood types don’t read these sites. Their “social justice”
mentors advise them not to.
Where
was their “Islamophobia” then? Or is it “Islamophobia”? I’m
willing to bet that if one asked at random any of the outraged demonstrators
against the Sultan if they were “Islamophobic,” they’d scream bloody
murder in denial.  “What do you
think I am? A racist?” Of course, a Malaysian or Brunei Muslim is not of
the same “race” as a Pakistani or Arab or Turkish Muslim. Nor even of
the same race as a chalk-white British convert to Islam. Still, the charge of
“Islamophobia” is attended by the charge of “racism.”
Of
course, they don’t condemn Islam. Islam is such a colorful religion, what with
all that praying and prayer mats and pretty architecture and flowing garb. It’s
all so culturally diverse, you see. Sharia has nothing to do with Islam. Right?
They can divorce Islam from Sharia and not be caught condemning Islam. CAIR
will never file a slander suit against Jay Leno. Leno was smart. He didn’t
equate Sharia with Islam, either. Nor with jihad. Or perhaps he commits the
same error, that is, segregates Sharia from Islam.
As
for their favorite pre- and post-Oscar party palaces, and venues in which to
spend lots and lots of money and network over drinks with their favorite people
and pose with their latest squeezes for the pesky paparazzi, the Sultan gave
them fair warning last October. Richard Ehrlich in his Washington Post article
of October 22nd last year, “Brunei
to implement Shariah penal code, including stoning, caning
,” reported:
The sultan of Brunei announced on
Tuesday (Oct. 22) he will rule his oil-rich Islamic country according to
Shariah laws, including death by stoning for adultery, the amputation of limbs
for theft, flogging for alcohol consumption and abortion, and other
punishments.
The Shariah penal code will begin
in phases starting in April 2014, said Sultan Hassanal Bolkiah, according to
Agence France-Presse.
John
Walker, writing for Western Free Press on May 8th, in his article,
Hollywood
Hypocrisy Cracks: Stars Boycott Historic Hotel Over Sharia Law
,”
remarked:
The stars spoke out when the
Sultan of Brunei, who owns the hotel through a holding company, announced that
his country would adopt Sharia law. The law is a brutal doctrine that calls for
harsh treatment of violators of its legal and religious code – especially women
and homosexuals.
In a rare turnabout, Hollywood
put aside its left-wing obsession with all things conservative – Christianity,
the military, and free market capitalism. Hollywood wants the Sultan to divest
the hotel from its holdings. But now it has opened a debate that goes far
beyond one hotel on Sunset Boulevard.
The
hypocrisy of Hollywood is obviously relevant here, but it’s not my main point. Hollywood
has always been hypocritical. Over the last four or so decades, it has churned
out numerous anti-American,
anti-military, pro “social justice” films
, all the while enjoying
the rule of law which they want to change in this country, and doing its own
kind of wealth-spreading to countless tyros, producers, directors, actors, and actresses,
turning them into millionaires or better, ready to tow the Progressive/Left
party line.
It’s
the inbred, nearly incestuous cluelessness of the whole town. What Hollywood
isn’t quite aware of is the stake Islam has in their business (aside from the
self-imposed injunction against negative portrayals of Islam and Muslims in
films). Ben Shapiro, in his Breitbart column of May 7th, “Nine
Other Sharia-financed Projects Hollywood Should Boycott,
” noted:
Brunei
will now operate under laws that “call for violent punishment, including
amputation and death by stoning, against those engaging in same-sex activity
and extramarital sexual relations and those committing adultery.” And as Big
Hollywood’s John Nolte stated:
Hopefully, rather than using gay
rights as a weak and hypocritical excuse to single out and beat up on
conservative Christians, this is the first step of a Hollywood that will use
its awesome power to call attention to the very real and tragic horrors homosexuals
face in Islamic countries.
In honoring that “first step,” we
hereby recommend that Hollywood leverage its massive market power against other
Sharia law targets.
The Movie Promised Land. Matt Damon’s anti-fracking
diatribe was funded by the royal family of the United Arab Emirates. As Lachlan
Markey of Heritage Foundation writes,
Promised Land was also produced ‘in association’ with Image Media Abu
Dhabi, a subsidiary of Abu Dhabi Media…The company is wholly owned by the
government of the UAE.”
The Abu Dhabi Film Festival and
The Dubai Film Festival.

Stars like Uma Thurman and Adrian Brody have attended the Abu Dhabi Film
Festival. And the Dubai Film Festival – Dubai is a member of the UAE as well —
has attracted celebrities including Cate Blanchett, Tom Cruise, George Clooney,
Oliver Stone, Gerard Butler, Salma Hayek, Richard Gere, Ben Affleck, Brad Bird,
and others.
Al Jazeera America. Al Gore had no problem taking
hundreds of millions of dollars from the government of Qatar to sell his
Current TV to Al Jazeera America. Qatar is ruled by a combination of civil and
sharia law. Sodomy is punishable by between one and three years in prison.
Qatar is now cooperating with the Gulf Cooperative Countries to apply an anti-gay
test
to those who wish to immigrate to the country.
Bank of America. Qatar currently holds a $1
billion stake
in Bank of America.
Major
Universities Including Harvard, Georgetown, Columbia, University of Arkansas
and Berkeley.
All
these major universities have taken serious cash from the Saudi
government. In 2005, Prince Alwaleed bin Tala Alsaud handed $20 million to
Harvard and another $20 million to Georgetown. He stated, “Bridging the
understanding between East and West is important for peace and tolerance.”
Georgetown President John J. DeGioia stated, “The
gift will deepen Georgetown’s ability to advance education in the fields of
Islamic civilization and Muslim-Christian understanding, and strengthen its
presence as a world leader in facilitating cross-cultural and inter-religious
dialogue.” Saudi Arabia punishes homosexuality with penalties ranging from
death to lashings, from chemical castration to prison sentences.
Of
course, former president Bill Clinton, in his lucrative speaking schedule and continent-hopping,
has spoken in the Gulf fiefdoms a number of times. And, oh, yes, the Abu Dhabi
Investment Council owns most of that icon of American capitalism, the Chrysler
Building
– just for starters about what else the petro princes own in this
country.
Daniel
Greenfield on FrontPage ran an interesting and revealing post on May 6th
about the gamboling of the Sultan’s gazillionaire offspring, “Will
the Sultan of Brunei Stone His Gay Son to Death
?” 
Hollywood celebrities are
protesting Brunei’s adoption of Sharia Islamic law because it could mean gay
men being stoned to death. Not to mention women. Also everyone from Christians
to anyone who drinks a glass of beer could face cruel medieval punishments.
Brunei’s ruling family, like
those of most oil-rich nations, has been notorious for its party lifestyle. A
member of the Sultan’s harem has described violating his Sharia law together
with the Sultan
.
I could go on, but what would be
the point? Whatever Azim’s sexual preference is, does anyone believe that
Islamic law would apply to him any more than it did to his uncle?
It’s not just that Islamic law is
evil, but that it doesn’t apply to the elites who stone, whip and beat their
people, but spend all their time partying.
Vanity Fair in July 2011, ran a piece by Mark Seal which explodes the pious,
born-again-Muslim faith of the Sultan and his brother and offspring. Well, not
so much the offspring.
For six weeks, starting last
November 8, in the Supreme Court of the State of New York, in Manhattan, the
two sides in a most unusual trial presented equally outlandish stories. The
plaintiff, Prince Jefri Bolkiah, Brunei’s notorious royal playboy, who has
probably gone through more cash than any other human being on earth, tried to
convince the jury that he was extremely naïve when it came to financial
matters. He claimed that he never signed checks and that his business affairs
had been managed entirely by four private secretaries and a coterie of advisers
and attorneys, who ran his estimated 250 companies and all his other concerns.
By casting himself in that light,
Prince Jefri, 56, hoped to make the jury believe that two of his own lawyers,
Faith Zaman and Thomas Derbyshire, the attractive British husband-and-wife team
sitting at the defense table, had ripped him off to the tune of a reported $23
million. This wasn’t necessarily a bad strategy, because soon it seemed that
only a simpleton would not have noticed the blatant chicanery he was accusing
these attorneys of committing.
Imagine.
And this is not a Sharia court, either, but an American law court. But the
Sultan’s sons, discussed by Greenfield above, are just as profligate, and this
might be more in tune with Hollywood’s newly-cast crowd of protesting extras.
Mark Seal wrote about the Sultan and his brother:
Back home, the sultan erected a
1,788-room palace on 49 acres, “which is without equal in the world for
offensive and ugly display,” in the words of one British magnate, and
celebrated his 50th birthday with a blowout featuring a concert by Michael
Jackson, who was reportedly paid $17 million, in a stadium built for the
occasion. (When the sultan flew in Whitney Houston for a performance, he is
rumored to have given her a blank check and instructed her to fill it in for
what she thought she was worth: more than $7 million, it turned out.) The
brothers routinely traveled with 100-member entourages and emptied entire
inventories of stores such as Armani and Versace, buying 100 suits of the same
color at a time. When they partied, they indulged in just about everything
forbidden in a Muslim country. Afforded four wives by Islamic law, they left
their multiple spouses and scores of children in their palaces while they
allegedly sent emissaries to comb the globe for the sexiest women they could
find in order to create a harem the likes of which the world had never known…..
The
Vanity Fair article contains much, much more detailed dirt on the Sultan and
his family, but you’ll need to read it yourselves.
So,
what’s the big deal about Sharia as practiced in Brunei? After all, Muslims
practice it in every Western country named above, either formally, in lawsuits
against “Islamophobic” critics or against communities that don’t want
mosques built anywhere near civilized people, or in impromptu applications of
it, when they rape indigenous, non-Muslim women, establish no-go areas in
Western cities, or demand that non-Muslims conform to their religious, dietary,
and social practices.
Hollywood’s
notion of “social justice” relating to the Sultan of Brunei is very
late in coming. And the telling thing about the protests is that the Sultan’s
imposition of Sharia in that pitiful country directly attacks Hollywood’s own
notorious “lifestyle.” Suppose the Sultan had rounded up all the
non-Muslims in Brunei, and had them executed? Would Hollywood turn out in its
Birkenstocks and designer jeans to protest that?
Doubtful.
If you’re not a Muslim in Brunei and are persecuted, it’s all your fault. After
all, you can take “tolerance” too far.

Sharia for Dummies (and Dhimmis)

No,
that’s not the actual title. Sharia-ism
is Here: The Battle to Control Women and Everyone Else
might have been
called that but doubtless Joy Brighton, the author, would have encountered
brand or trademark infringement problems with the publisher of the popular and
successful For Dummies series, John Wiley
& Sons
. I also suspect that Wiley & Sons would have been horrified
by the idea of publishing such an “Islamophobic” book anyway. It has
published Islam
for Dummies
and The
Koran for Dummies
, both of which, to judge by their Amazon
descriptions, are treacly, inoffensive, sanitized guides to a highly “misunderstood”
and “misperceived” religion-cum-ideology.
Brighton’s
opus is a generously illustrated and
annotated book
intended as a “show n’ tell book for national security,
civil right and women’s right activists and lobbyists in America.” It is meant
to be read by, and serve as, a handy reference guide for anyone who is aware of
the peril posed by Islam as it is practiced around the world, in the West, and
especially in the U.S., but who really hasn’t digested the scale of the threat
or any of its details. And it isn’t just about Islam’s crusade to control
women. It truly is about Islam’s designs on everyone.
Before
citing the book’s plenitude of virtues, however, there is one issue I must
raise. Page 131, for example, under the heading, “Conversion to Islam or
Sharia-ism in America? How do we help youth understand the difference?” highlights
the conversion percentages of Americans to Islam. At the bottom of the page is
an “Insight Box,” which reads:
How many of these American
Converts have been converted to Islam the religion? How many are knowingly or
unknowingly slowly being converted to Sharia-ism, the political movement of
Radical Islam? How do we help young potential converts understand the difference
and draw the line between Islam and Sharia-ism?
One
point of disagreement between Sharia-ism
is Here:
The Battle to Control Women
and me is that I do not draw a line
between Islam and what Brighton calls “Sharia-ism.”  Brighton writes in her Introduction:
You are holding in your hands a
chronicle of the surprising inroads that Shariah, the guiding principles of
Radical Islam, has made in America during the critical years of 2008-2013.
Radical Islam, also known as
Political or Sharia Islam, has expanded onto every continent, and with it
Sharia-ism, the political movement of Radical Islam, whose goal of totalitarian
control of every nation and people is incompatible with Western values of
individual liberties and inalienable rights. Sharia-ism is about politics, not
religion.
Sharia-ism is about total
control, not simply destruction or terrorism. (p. 6)
Both
of Brighton’s terms, Sharia-ism and Radical Islam, violate Ockham’s Razor of
economy of concepts by arbitrarily divorcing Islam and Sharia. The dichotomy is
fallacious and inadvertently grants Islam an unsought-after epistemological and
ideological victory. Brighton is not the only authority to commit this error. Seen
as a virulent ideology, Islam and Sharia are one and the same. They are inherently
complementary and co-dependent. I do not think Islam, “moderate” or
otherwise, is a benign belief system, because it is fundamentally political,
nihilist, and totalitarian in means and ends. Sharia is Islam, and Islam is
nothing without Sharia. Without the primitive, anti-conceptual, rote-learned
code of Sharia, Islam is little better, and perhaps even worse, than your
random whacky California cult, or Scientology, Wiccanism, or Pyramid-Worship.
Further,
were it not an ideology, why have its proponents, spokesmen, and activists
focused so much on its political status? Catholics, Protestants, Jews and
members of other creeds are not waging campaigns to force government,  businesses, and other social organizations to
accommodate their beliefs and practices. The promulgators of Islam, however,
such as CAIR and the various Muslim organizations in this country, seek
accommodations to Islam in virtually every sphere of American life, from
demanding foot baths in various venues (schools, office buildings, airports),
removing “offensive” crucifixes and other non-Islamic religious icons
from classrooms, insisting on halal
restaurant menus, to praying en masse
on public streets, to inveigling their way into government jobs and
appointments.
By
way of contrast, I am not aware of a movement in the Catholic Church to compel,
by statute, non-Catholics to genuflect when passing a Catholic church on the
street, or else pay a fine.
And,
perhaps more importantly in the context of politicizing Islam, Catholicism,
Protestantism, Judaism, and other faiths do not campaign to silence critics and
criticism of those faiths. Islam, however, yearns to suppress all criticism of
its practices and tenets. As Brighton herself points out in her book, the term
“Islamophobia” was coined by the Muslim Brotherhood to stigmatize any
and all criticism of Islam, the term implying racial, ethnic, or religious
bigotry.
Finally,
even were one to portray Islam as a mere patriarchic theocracy, one is still
talking politics, for a theocracy implies the governing moral structure of a
country. Ergo, it is a political system, and specifically a totalitarian one,
because it prescribes the course of one’s life from head to foot, from sunrise
to sunset, in thought, in action, and in one’s social associations.
I
make no allowances for Islam, or cut it any slack by calling it a
“private” belief system as I might the Catholic or Jewish. Privacy is not Islam’s leitmotif; on the
contrary, it is unabashedly and necessarily public.
Conformance to its bizarre catalogue of dictats is audited. Straying from the
ritualistic and behavioral drill can result in death (e.g., honor killings, and
for apostasy). To refer to “radical Islam” is to commit a redundancy.
Islam is “radical” in the sense that must obviate all other
alternatives and choices, else it is nothing. Force or the threat of force is Sharia’s
telling hand. Islam is Sharia, and vice
versa
.
“Passive,”
non-violent Muslims face a decision: a continuation of their submission to
Islam, or total repudiation, as Ayaan Hirsi Ali decided on. There is no
dignified or respectable “middle ground”; one cannot be half-free and
free at the same time. That is a delusion. See some of my columns on Islam and
its inherently totalitarian and irrational nature here,
here,
here,
and here.
Those objections having been made, Sharia-ism is Here draws on a galaxy of authorities on Islam such
as Nonie Darwish, Steve Emerson, Robert Spencer, Ayaan Hirsi Ali, Wafa Sultan,
Walid Phares, Diana West, and Melanie Phillips, to name but a few whose names
appear in the Acknowledgements and throughout the text.  
There
are fifteen chapters in the book, under such titles as “What is Sharia-ism
and Shariah Islamic Law?”; “Sharia-ism: Concepts and
Vocabulary”; two chapters, titled “Two-Armed Leadership of
Sharia-ism,” one dealing with Shariah clerics in American mosques and
home-grown radicalization, another with the Muslim Brotherhood network in the
U.S.; “Creeping Sharia-ism,” which exposes the strategy of imposing
Sharia in small steps, which is what we are seeing now; and “Shariah
Lawfare,” which demonstrates how Islamic law is insinuating itself into
the American judicial system on all levels, and not with much resistance from
our courts.
(See
a recent Jihad
Watch
article on a legislative initiative in Florida to banish foreign or
Sharia law from the state’s judiciary. It is just one of several initiatives
discussed by Brighton in Chapter 14, “U.S. Representatives and Governors
take action: Congressional Hearings and New State Laws.”)
One
goal of the “stealth,” cultural jihad
in this country by organizations like CAIR, the Muslim
Lawyers Association
, the Muslim Bar
Association of New York
, and Muslim
Advocates
, is to persuade, or browbeat, our judiciary into removing the
“foreign” designation from Sharia, and to see it
“integrated” into American law as they are now doing in Britain –
step by stealthy step. A Telegraph (London) article of March 22nd by
John Bingham, “Islamic
law is adopted by British legal chiefs
,” reports:
Islamic law is to be effectively
enshrined in the British legal system for the first time under guidelines for
solicitors on drawing up “Sharia compliant” wills.
Under ground-breaking guidance,
produced by The Law Society, High Street solicitors will be able to write
Islamic wills that deny women an equal share of inheritances and exclude
unbelievers altogether. The documents, which would be recognized by Britain’s
courts, will also prevent children born out of wedlock – and even those who
have been adopted – from being counted as legitimate heirs.
Anyone married in a church, or in
a civil ceremony, could be excluded from succession under Sharia principles,
which recognize only Muslim weddings for inheritance purposes.
Notice
how piddly and surreptitious the issues are: Inheritances and wills. Nothing to
worry about. The cases will be handled by the British equivalent of American
family courts or civil law courts handling suits and torts. It’s just some
people fussing and feuding over money and custody. None of our business.
The
same thing is being attempted here in the U.S. Brighton devotes several pages
to the organization American Laws for American Courts (ALAC).
America has unique values of
liberty which do not exist in foreign legal systems; this is particularly true
in regard to Shariah Islamic Law, included among them, but not limited to the
following, are these values and rights: freedom of religion, freedom of speech,
freedom of the press, due process, right to privacy, and the right to keep and
bear arms.
The goal of the American Laws for
American Courts is a clear and unequivocal application of what should be the
goal of all state courts: No U.S. citizen or resident should be denied the
liberties, rights, and privileges guaranteed in our constitutional republic.
ALAC is a neutral law. it is
designed to protect the U.S. Constitutional rights of Americans against any
foreign law from any country which challenges their rights. (pp. 224-225)
Some
ALAC-style laws were overturned in a few states because they mentioned Islam or
Sharia. ALAC then created a draft model law that would not be “country,
culture, religion, or ethnic specific.” This model seems to have been
successful in many states, because neither CAIR nor a dhimmified appellate
court could concoct a charge of “Islamophobia” or
“discrimination,” although the unnamed subject is specifically Islam.
Another
hopeful sign is the passage in several states of “anti-libel-tourism”
laws that reject foreign suits against Americans accused of libel. The
Committee to Protect Journalists
features a brief history of those laws,
which stemmed from the suit against Rachel Ehrenfeld for publishing a book in
2003 in the U.S., Funding
Evil: How Terrorism is Financed and How to Stop It
, in which she accused
billionaire Saudi businessman Khalid bin Mahfouz of channeling funds to
terrorist groups.  Ehrenfeld was subsequently
sued by Mahfouz in London, but not in the U.S., because the First Amendment
protected her. As a consequence, New York passed the
appropriately named Libel Terrorism Protection Act in May 2008. It refuses to
recognize foreign law, in this instance, Britain’s bizarre defamation statutes,
and in particular suits brought by super-rich Muslims in other countries.  
Chapter
13, “Failure of U.S. leaders to address the threat of Sharia-ism,” inadvertently
underscores my objection to separating the cream from the milk, that is, making
an erroneous distinction between Islam and Sharia law. Islam is one whole cow.
American
politicians are fearful of criticizing Islam because it’s a
“religion,” and they don’t wish to be accused of attacking any religion. This prevents them and now
our law-enforcement and intelligence agencies from honestly and effectively addressing
the threat posed by Islam. The redaction of all mention of Islam and Muslims
from FBI training documents, and the recent dissolution of New York City’s
crack mosque and Muslim suspect surveillance program by the new socialist mayor
of New York (at the behest of Muslim “civil rights” activists) simply
blind-sides the country by hamstringing those charged with protecting it from
terrorism.
A
lengthier review of Joy Brighton’s book would not do justice to it. Her book is
an all-in-one instructive guide to what Islam is, what danger it poses to our
country, and what we have and have not done to combat its corrosive
“cultural jihad” against
this country. It names culprits, and it names courageous individuals who have
sounded the alarm (often to deaf ears), and lists all the rogues and scoundrels.
I think the book is so comprehensive and well done (albeit with my stated
reservations above) that a fund should be started to send free copies of it
every member of Congress, and also to members of the state legislatures.
There’s
no vigorish in being a dummy when it comes to betting against Islam. I
recommend Brighton’s book because it can alert Americans to the cards – or
knives – that are regularly hidden up Islam’s sleeve.

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