More Intellectual Inconsistency

Today on Facebook, the Manhattan Declaration highlighted a press release by the National Organization for Marriage in which NOM takes Starbucks to task for coming out in support of same-sex marriage rights. I want you to take a look at this statement from NOM's president, Brian Brown, with regards to Starbucks:

"Americans should be able to drink a peaceful cup of coffee without worrying that a portion of the company's profits is going to be used to push gay marriage without a vote from the people," said Brown. "This is a gratuitous leap into a hot button culture war issue; respect for diversity touted by Starbucks ought to include respecting the diverse views of all its customers and employees."

There are a few things that I want to highlight here:

1. Brown seems to miss the irony of his organization issuing a public press release criticizing the public policy position of an organization. In effect, in criticizing Starbucks, NOM is doing the exact same thing that it is criticizing Starbucks for.
2. As a private company, Starbucks is free to publicly support or condemn whatever it wants. The public is likewise free to react to Starbucks' positions by choosing whether or not to patronize its establishments. This is how the free market works. Americans do not have any inherent right to enjoy Starbucks' coffee without having the burden of thinking about the company's positions.
3. I do not see how Starbucks' entry into this cultural issue is any more "gratuitous" than NOM's. It may be wrong, or misguided, or even evil, but by using the term "gratuitous," NOM is implying that Starbucks has no business opining on public policy. Unfortunately for NOM, that is a fundamental right of all Americans.
4. NOM goes on to state that they are concerned that Starbucks may discriminate against those who disagree with their position, be they employees or customers. As I've written before, one of the fundamental rights that individuals and business owners alike should be able to exercise is freedom of association. If individuals have the right to boycott Starbucks over a public policy position, Starbucks should have the right to refuse service/employment to individuals for the same reasons.

This is one of the reasons that single-issue organizations, even those I agree with in principle, give me pause. Historically, if an organization is committed to a single issue, then they tend to be willing to do anything to further that cause, even if it sacrifices something else good in the process. I happen to agree with NOM that same-sex marriage is a moral evil. However, I'm concerned that in their rush to defend marriage, they are willing to run roughshod over anything that stands in the way, even if that something is as fundamental as freedom of speech or freedom of association.

Freedom of Association

One of the hallmarks of a truly free man is his ability to associate with whomever he pleases. On a personal level, this seems obvious; there is no government agency that requires us to have a particular ethnic or socio-economic balance in our social circles, and I would venture to guess that, even in today's uber-regulated society, an attempt to enact legislation that allowed a bureaucracy to line up our social calendars would not be tolerated. This extends to our personal commercial interactions; we regularly choose which businesses to patronize based on how pleasant we find the experience, and we rightly recognize that no one, including the government, has the right to force us to shop at a particular store.

Why, then, does this common sense seem to go out the window when we are the business owner? I had a conversation recently with someone when the subject of private property rights came up. As a libertarian, I believe that the rights to freedom of association and private property are inviolable. As such, I argued that a racist shop owner should have the right to refuse service to minority patrons, which shocked and offended the person I was talking to, as in his mind, a business owner should not have the right to choose their clientele by whatever criteria they wish. Now, I want to be clear: I do not advocate race-based discrimination by business owners. I find the idea of racism morally repugnant and quite ignorant, and would have a hard time patronizing any business that refused service based on skin color. However, with that being said, if we truly believe in freedom of association and private property, then those same freedoms should extend to racists, whether we agree with their viewpoint or not. The real issue in question here is whether or not a person should be compelled to associate with people they don't want to associate with.

With all that being said comes a story from a Rhode Island high school, where an atheist student successfully led a campaign to have a prayer mural removed from the school property. Following her success, the Freedom From Religion Foundation placed an order for a dozen congratulatory roses to be delivered to the girl. Unfortunately, there were no florists in the area that were willing to make the delivery. Upon questioning, the florists who refused to make the delivery responded that they had no desire to wade into such a controversial issue. Since the student's crusade was so unpopular in the community, they feared that being the company to deliver her congratulatory flowers from an atheist organization would damage their reputation in the community, even if they were quite literally only the messenger.

Unsurprisingly, the Freedom From Religion Foundation, as is the case with such groups, was unwilling to let such an insult stand, and has filed a suit against the florists, citing civil rights violations. According to the Foundation, it is a violation of civil rights laws for these private businesses to refuse service based on religious affiliation.

Much could be said about groups like the FFRF. Volumes could be written about their use of litigation to silence critics or to get their way when public opinion is against them. I could point out the irony in an organization with 'freedom' in its name using the power of the state to force others to do its bidding. I could demonstrate historically that the founders had no intention of banishing religion from the public square, and that therefore there is no constitutional basis for the campaign that started this whole situation. Instead, I'd like to point out a simple fact: if a business owner can be forced by the state to accept clients, then that business owner is not a free person, they are a servant. Freedom and compulsion cannot coexist. The FFRF has the right and the freedom to hold their mistaken position that God does not exist. They need to respect the freedom of others not to associate with them.

Impeachment

Earlier this month, President Obama granted a recess appointment to Richard Cordry to head the Consumer Financial Protection Bureau. He also recess-appointed several new members to the National Labor Relations Board. According to the U.S. Constitution, Article 2, Section 2, the president has the authority to appoint officials requiring Senate confirmation during a Senate recess on a temporary basis until the Senate reconvenes:

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

According to Aricle 1, Sections 4 and 5, both houses must meet in session at least once per year, require a majority present for business to be conducted, and in order to recess for more than 3 days, they require the permission of the other house. Otherwise, the houses are free to determine their own rules for their sessions. According to Senate rules, pro forma sessions are established to meet constitutional requirements when no business is to be conducted, but the Senate is not officially on recess. From the Senate website, a pro forma session is:

"A brief meeting (sometimes only several seconds) of the Senate in which no business is conducted. It is held usually to satisfy the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other."

In other words, a pro forma session is a legal session of the Senate, having been established as such by the Senate's in-house rulemaking authority, itself a power granted in the Constitution. Since the Senate is in session, the President has no power to make recess appointments, since the Senate is not in recess. Supporters of Obama's actions have parroted the administration's position that since no business is being conducted, the Senate is 'effectively' in recess, and therefore Obama can make the appointment. This argument is baseless, however, since the President has no constitutional authority to judge the way the Senate conducts its business, and cannot unilaterally decide how the Senate's internal rules work.

What has occurred is that Obama, by appointing Richard Cordry and others, has violated the law as outlined in the U.S. Constitution. As such, he should be held to account through articles of impeachment. There is historical precedence for this very thing: in 1868, President Andrew Johnson was impeached for violations of the Tenure of Office Act, which required Senate approval before a president could terminate an official who had been appointed by a previous president. Johnson was eventually acquitted by one vote, because the Act was ambiguous with regards to the protection afforded to Cabinet-level posts. In this case, however, there is far less ambiguity, and the offense seems to be very clear-cut. If the House determined in 1868 that Johnson's actions at least warranted a trial, there is no doubt that the same applies to Obama. At the very least, he should be required to defend his actions at trial.

While historical precedent and the rule of law seem to make this fairly clear cut, I have no doubt that it will not happen for three reasons. First, the current political climate is such that neither party would even consider charges against one of their own, regardless of the crime. Second, the Republicans would not dream of kicking Obama out of office prematurely, because Republican hatred of him is such a great fundraising point. Can you imagine how much less motivated Republican donors would be if the incumbent was Joe Biden? Third, even individuals motivated by enforcing the rule of law know that an impeachment trial would be spun by the media as a racist Republican witch hunt. Therefore, this will end up being one more case where the President violates the constitutional balance and the rule of law becomes an unacknowledged casualty.

Balance of Power

A few days ago, I wrote about a couple in Idaho that is suing the EPA over its designation of their home site as a protected wetland. My point in the post was primarily that the EPA has an unconstitutional mandate, and as such, its actions violate the clear separation of powers between state and federal governments that were part of the original constitutional structure. I also made a quick point that the only recourse that the couple has, given our abandonment of original constitutional principles, is to sue a federal agency in a federal court, which seems to be a significant conflict of interest.

At the core of the matter here are two legal theories that most individuals are likely not familiar with, or at least are not familiar with the history behind them. The first theory, called Judicial Review, is the more well-known of the two, since it is the one that is followed today. In the landmark 1803 Supreme Court case Marbury v. Madison, the Court held that federal courts had the ability to rule on the constitutionality of laws passed by Congress. While judicial review is not specifically enumerated in the Constitution, the Court used the enumerated power to judge cases where the United States was a party to justify its role determining constitutionality.

The second, and lesser known, position is referred to as Nullification. Nullification occurs when a state government determines that a federal action is unconstitutional, and then responds by ignoring the action or law. For example, if Idaho were to determine (correctly) that the EPA had no constitutional authority to forbid a property owner from building a home on their own land, then the state of Idaho could respond by arresting EPA agents attempting to impede the construction of a home on the property for trespass. There have been only a handful of attempts at nullification in the United States' history, and none has been successful. Critics of nullification point out that Article III of the Constitution gives the Supreme Court authority to hear disputes between states and the federal government, and therefore it is only the Supreme Court that can rule on the constitutionality of a federal law or action.

Let's look at this from the constitutional perspective first. At first glance, there does seem to be a good argument to be made that, since the Supreme Court has constitutional jurisdiction over cases where the United States is a party, it is the only forum for determining the constitutionality of a federal action, since any suit brought claiming a constitutional violation would necessarily name the United States as defendant. This actually seems pretty straightforward. I actually have very little doubt in my mind that this is what the founders intended the process to be.

Unfortunately, the founders also expected the American people, along with the American government, to be virtuous and moral, instead of deceitful power mongers who love nothing more than to steal from those that they can claim power over. Additionally, the Constitution was written at a time when words meant something; specifically what the author intended them to, and were not subject to the postmodern practice of interpretationalism, where words mean whatever the receiver wants them to mean. Therefore, we have a court full of individuals with political motivations who have absolutely no moral qualms about completely redefining the Constitution's clear meaning via their own interpretive lens. The numerous overreaches of federal authority over the past century, coupled with subsequent Supreme Court assent are testimony to the fact that we no longer have a federal government, including the court tasked with judging such actions on their constitutional merit, that feels any need to abide by the clear intent of the document.

As such, the only possible method for balancing power that now exists is for state governments to refuse to abide by federal laws and actions that are clearly unconstitutional. Otherwise, we might as well just forget the whole thing and succumb to the authoritarianism that daily casts a shadow over our lives.

Private Property

I've seen quite a few references to this story over the past couple of days. In short, Michael and Chantell Sackett purchased a residential lot across the street from Priest Lake in Idaho in 2005. After obtaining the proper permits, the Sacketts began developing the land in anticipation of building a home on the site. Shortly after site work began, the EPA showed up claiming that the lot was a protected wetland and ordered the Sacketts to return the site to its original status or face $37,500 per day in fines.

It should be noted that the lot is across the street from the lake, and there is an existing home between the road and the lake shore. There are homes on both sides of the lot (which is less than an acre), and there is no natural standing water on the lot. The lot does not show up on any EPA wetland inventory. Additionally, a site survey by an independent engineer was conducted in which the engineer reported that the property does not meet the established definition of a wetland. Basically, the property is not a wetland, never was a wetland, and the EPA is full of shit. The Sacketts are suing the EPA claiming that they overstepped their bounds, and the case is now scheduled to be heard before the Supreme Court.

There has rightly been a lot of outrage over this story. Blog posts and editorials have decried the overstepping of the EPA's authority, the clear fact that the property is not a wetland, and the overall bullying nature of the most oppressive bureaucracy in the United States. It seems to be one of those frequent cases of government gone off the rails.

All of these complaints are justified, but they don't go far enough. I say this because, while many right-headed Americans will agree that the EPA has gone too far, I don't see any mainstream articles pointing out that the EPA itself is an unconstitutional entity and has no more right to regulate this couple's private property than I do. Simply put, there is nowhere in the Constitution that grants the federal government the authority to entangle itself in the use or development of private property, and the 10th Amendment makes it clear that where the federal government lacks constitutional enumeration, the issue is left to be resolved between the state and the individual. If the county issued a building permit, and the state of Idaho does not have a law against developing said property, then the construction is legal. End of story.

This is, I think, where those who call themselves small-government proponents have dropped the ball. Too many of us have legitimized unconstitutional and tyrannical agencies like the EPA because we don't want to be labeled as extremist. After all, opposing the EPA must mean that we are against clean air and water and want children to die of asthma. But this is how the war is lost. By suing the EPA in federal court, the Sacketts have acknowledged that the EPA is legitimate, which it isn't. In a constitutional republic that respects the rule of law, the Sacketts would have laughed and then told the EPA to fuck off, and Idaho state troopers would have thrown the offending bureaucrats across the border into Washington, where they tolerate that leftist bullshit. Unfortunately we have spent a century growing the federal government into the beast that it is, and now we are stuck with it. Now, the only hope that the Sacketts have is that a federal court will rule against a federal agency and in favor of some couple from backwater Idaho. Good luck.

I'd conclude this post by stating that we need to decide if we are a people that respect the rule of law and private property, or if we are willing to subject ourselves to illegitimate tyranny, but that question has been definitively answered. We chose wrong.

And check out Jeff Goldstein's post on this topic at Protein Wisdom. He gets a lot of traffic, so he doesn't need the couple of hits he'll get from my little hovel, but I like the guy.

Selecting A Candidate

Since the Iowa caucuses were held last week, and the New Hampshire primary is scheduled for this Tuesday, I thought it might be interesting to explore the differences between a caucus and a primary, and highlight some things that are probably not common knowledge about the presidential nomination process.

First off, it is important to understand how a party's presidential candidate is chosen. Both major parties hold a national convention at some point during the year of a presidential election. Each state's party sends a number of delegates to this convention; the delegates then vote for a presidential nominee at the convention. Depending on election laws and party rules in each state, the delegates may be committed to voting for a particular candidate upon arrival, or may be allowed to vote for the candidate of their choosing. Therefore, depending on primary results from each state, there is a possibility that the eventual party candidate will be known prior to the start of the convention, but it is entirely possible that the party could gather at the convention without knowing for sure who the candidate will be, depending on how close the numbers of committed delegates are between two or more candidates, and how many uncommitted delegates there are at the convention. In recent history, the results of the primary season have provided a clear candidate for both political parties, but in 1976, the Republican convention was held without a clear winner, and Gerald Ford narrowly beat Ronald Reagan for the nomination during the convention.

This may sound complicated, but compared to the caucus system used by Iowa, it is downright simple. While a primary election is an election, where voters go to the polls to vote for a party candidate, the caucus system works more like a community meeting. In Iowa, those who wish to caucus attend the designated meeting place in their precinct on the evening of the caucus. Republicans and Democrats caucus differently; in the Republican caucus, participants are allowed to give speeches supporting their chosen candidate, after which all caucus-goers write down their chosen candidate's name on a piece of paper. The results are tabulated and sent to the state party. Delegates from the precinct caucus are chosen based on results; these delegates then go to the county convention, where the process is repeated in order to choose delegates to the district convention, where the process is repeated in order to choose delegates to the state convention, where the process is repeated in order to choose delegates to the national convention.

For Democrats, the process is even more complicated. During the caucus, people assemble in the meeting place in groups according to candidate preference. People from different groups then are given 30 minutes to try to convince members of other groups to abandon their candidate and join another group. After 30 minutes, any group that has less than 15% support is eliminated and those members are given the opportunity to back another candidate. The final headcounts are tabulated and then the process is repeated at the county, district, and state levels. At the state level, delegates are chosen for the national convention. Interestingly enough, while the Iowa precinct caucuses are the kickoff to the national candidate selection process, the entire statewide process takes so long that Iowa is actually the last state to choose delegates to the national conventions.

Although the Iowa caucuses garner a lot of attention since they represent the kickoff of the official nomination process, they are not particularly effective at predicting who the eventual party candidate will be, at least on the Republican side. In fact, the winner of the Democratic caucuses has gone on to win the party nomination for 6 of the past 8 cycles, while the Republican winner has only gone on to win the nomination in 3 of the last 6 (not including 2004, when Bush Jr. ran unopposed, or 1992, when Bush Sr. ran unopposed).

Finally, it should be noted that popular selection of presidential candidates, as well as the popular election for president, do not go back to America's founding. It wasn't until 1840 that the U.S. had descended into the two party system we suffer under today; prior to 1840, there had only been one election (1828) between two candidates, in all of the other elections, the electoral vote was split between three or four candidates. It wasn't until 1860 that all states even held popular elections for president; from 1789 through the early nineteenth century it was far more common for the state legislatures to pick presidential electors. As you are assaulted with misleading campaign ads, a dishonest media, and the stupidity of the candidates themselves this year, think back to the good old days, when the president didn't have much domestic authority and we weren't bothered with all of the election nonsense. I know that's what I'll be doing.

God Told Pat Robertson A Secret

Apparently, God told evangelist Pat Robertson who the next president is going to be:

"I think He showed me about the next president, but I'm not supposed to talk about that so I'll leave you in the dark -- probably just as well -- but I think I know who it's gonna be," Robertson said Tuesday on the Christian Broadcasting Network's "700 Club."

God did allow Robertson to share this bit of their conversation, though:

"Your country will be torn apart by internal stress. A house divided cannot stand. Your president holds a radical view of the direction of your country which is at odds with the majority. Expect chaos and paralysis. Your president holds a view which is at the odds with the majority -- it's a radical view of the future of this country, and so that's why we're having this division. This is a spiritual battle which can only be won by overwhelming prayer. The future of the world is at stake because if America falls, there's no longer a strong champion of freedom and a champion of the oppressed of the world. There must be an urgent call to prayer."

Just about every time Robertson opens his mouth, I cringe, knowing that something ridiculous is about to come out. Nonbelievers may find his schtick funny, but as a believer, I find it offensive. For anyone interested, here are a few reasons why we can be confident that Robertson is speaking for himself, and not relaying a message directly from the Almighty:

1. God doesn't leave you wondering if he told you something. Nowhere in scripture are we treated to an example of God trying to deliver a message and failing. People may disregard the message, as Jonah did when he was commanded to go to Ninevah, but the message was received loud and clear. If Robertson "thinks" God showed him about the next president, he is mistaken.
2. Prophecy is meant to be shared. God doesn't tell people things and then instruct them to keep it between the two of them. In fact, the scriptural record shows that prophecy is a message meant to be shared with the population. Furthermore, in the rare instance where God intends to speak directly to a particular individual (Saul on the road to Damascus, for example), the content of that discussion becomes public record. Paul used his encounter with Jesus to substantiate the claims of the other Apostles, not to brag to everyone that he and God shared some big secret.
3. The proper reaction to a true personal encounter with God is humility, not pride. If God Himself, the Creator of the Universe and everything in it, chooses to grace you with his presence, it should leave you awed and humbled. Instead, Robertson is using his 'prophecy' to imply that he and God are BFFs, and the rest of us are to be "left in the dark."
4. Real prophecy is subject to falsification. One of the things that separates biblical prophecy from fortune telling is that biblical prophecy always makes claims that can be proven false. One of the reasons for this is that prophets were expected to maintain a 100% correct prediction rate (see #1 above). If a prophecy was falsified, the prophet was clearly not speaking for God, and was executed for claiming to be. Additionally, God doesn't speak in order to reinforce the obvious, it's always in order to impart important information. With that in mind, let's look at Robertson's "prophecy": What I see is that there is deep division (obvious), and that either we will be torn apart by it or not (ambiguous). If Robertson made the claim that Obama's reelection would result in America's collapse, at least we could test it, but he doesn't even go that far. All we get is that we are in disagreement and really need to pray. This isn't exactly revelation.

In addition to the specific points above, I'd also highlight that the tone of Robertson's statement is fishy. Something about it just seems like he's trying too hard for it to sound mystical and prophetic, like he's modeling it after something else. Not really something I can quantify, it just feels off. In any case, there is sufficient content in Robertson's so-called prophecy to ignore it, which is probably what you were going to do anyway, but now you have another reason.

Is Violence Protected Political Speech?

From the University of California Berkeley comes a case of pro-Palestinian vs. pro-Israel demonstrations and the violence that ensued. In short, every year the Students for Justice in Palestine and the Muslim Students Association hold an "Apartheid Week" intended to highlight the injustice suffered by the Palestinian people. As part of the demonstration, they set up mock checkpoints around campus and ask passers by if they are Jews. I assume this is meant to simulate the checkpoints that Israel has set up around Palestinian-controlled areas.

As part of a counter-protest, Jesica Felber walked through one of said checkpoints holding a sign that read "Israel wants peace." In response, one of the Apartheid Week protesters hit her with a shopping cart. Felber sued the school, claiming that U.C. Berkeley had not done enough to protect her from a growing climate of antisemitism on campus. As part of the suit, Felber requested that the pro-Palestinian groups be banned from campus for five years and be cut off from campus-provided student group funding following the lifting of the ban.

Last week, a California judge dismissed the suit, stating that the University is not required to intervene in political disputes on campus. the judge went on to state that:

"...that event occurred when she [Felber], as one person attempting to exercise free speech rights in a public forum, was allegedly attacked by another person who likewise was participating in a public protest in a public forum."

The judge also stated that, while the allegation that the University was complicit in allowing a climate of antisemitism to develop was not valid, he would be willing to hear a case if the plaintiff could modify the suit to allege specific rights violations.

The Blaze, the news portal founded by Glenn Beck last year, reported the story with the headline "CA Judge Deems Ramming Jewish Woman With Shopping Cart 'Free Speech'" and included the following quote from Robert Spencer, founder of Jihad Watch:

"This is an outrageous decision. The Muslim students were trying to silence the freedom of speech of the Jewish students. The judge says this is a ruling in favor of free speech, but actually the freedom of speech was being infringed and the judge is saying that is ok to protect the freedom of speech of the Muslim students. Don’t the Jewish students have freedom of speech as well?"

I really feel like I need to add a disclaimer at this point, because I'm about to say things that will really piss off fellow conservatives, and I want to make sure that I'm clear before readers get pissed off and tune me out. First off, the Palestinian cause is a joke. In the Israel v. Palestine conflict, I am firmly in Israel's camp. As a matter of fact, I think that they are too reserved in their dealings with the degenerate rock-throwers that inhabit the West Bank and Gaza (and have voiced those feelings to Israeli citizens). Second, "Apartheid Week" sounds like complete bullshit conducted by pseudo-intellectuals who have no real understanding of the world but want a trendy cause to support (AKA just about everyone at Berkeley in the humanities or social studies departments).

OK, with that out of the way...

I agree with the judge in this case. As it turns out, U.C. Berkeley campus police arrested the dumbass who assaulted Felber with the shopping cart, and have regularly arrested individuals who have crossed the line from 'freedom of speech' to 'harassment and/or assault.' They have refrained from silencing the group as a whole out of respect for their freedom of speech, but are committed to prosecuting those who cross the line.

The  response to this case from the conservative corner bothers me. The Blaze reported that the judge ruled that shopping-cart assault is protected political speech, and Robert Spencer implied that U.C. Berkeley was protecting Muslim free speech at the expense of Jewish free speech. Neither of these claims are true, and any objective analysis of the facts will result in this conclusion. The judgement merely stated that the University was not liable, and that the incident occurred during individuals' exercise of protected political speech. Both Spencer and The Blaze are taking the ruling out of context in order to gin up emotionally-based support, and should be ashamed. I don't like it when my political opponents pull this trick, and I sure as hell won't tolerate it when my political allies do it.

As a matter of fact, true conservatives, classical liberals, and libertarians should be supporting free speech whether we agree with the content or not, and when protesters cross the line, as the idiot with the shopping cart did, we should support their prosecution. Furthermore, we need to be careful to properly represent the facts when someone we disagree with in principle wins a legal victory that they are entitled to. Just because someone has a moronic (or even dangerous) idea doesn't mean we have the right to try to suppress it, and then get the vapors when we fail. I'm getting damn sick and tired of people I agree with completely losing their shit over people we disagree with being allowed to express their opinions.

Obama: "F*** the Constitution, I do what I want!"

Obama announced that he has recess appointed Richard Cordry as director of the Consumer Financial Protection Bureau. Recess appointments are a constitutional way for the President to fill a vacancy in an executive-branch position requiring Senate confirmation when the Senate is in recess. The Senate is then expected to confirm or deny the appointment in their next session. If they deny, the recess appointment expires when the Senate recesses again.

The problem in this case is that the Senate is not in recess. Of course, this isn't a problem for Obama, because he doesn't give a shit what the constitution says, so he's making the appointment anyway.

Go read David Freddoso's explanation of the case, because I don't really have much else to say. Obama is a criminal with serious dictatorial tendencies, but I don't really expect anything to be done about it.