Sheridan: Con-Law

THEY SIMPLIFY

A friend, who ordinarily I'd 86 were he not a bartender, sends me stuff, including the anecdote below.

 

In a complex world, there's a reason why the Right exists.  

 

They simplify:

 

The $50 Lesson:


Recently, while I was working in the flower beds in the front yard, my neighbors stopped to chat as they returned home from walking their dog.

During our friendly conversation, I asked their little girl what she wanted to be when she grows up.

She said she wanted to be President some day.

Both of her parents, liberal Democrats, were standing there, so I asked her, "If you were President what would be the first thing you would do?"

She replied... "I'd give food and houses to all the homeless people."

Her parents beamed with pride!

"Wow...what a worthy goal!" I said. "But you don't have to wait until you're President to do that!" I told her.

"What do you mean?" she replied.

So I told her, "You can come over to my house and mow the lawn, pull weeds, and trim my hedge, and I'll pay you $50. Then you can go over to the grocery store where the homeless guy hangs out, and you can give him the $50 to use toward food and a new house."

She thought that over for a few seconds, then she looked me straight in the eye and asked, "Why doesn't the homeless guy come over and do the work, and you can just pay him the $50?"

I said, "Welcome to the Republican Party."

Her parents aren't speaking to me.

_______________________________________________

 

THE COUNTERPROPOSAL

 

Recently, while cleaning my shotgun (the local militia had reported jack-booted thugs in the neighborhood, some riding black helicopters flying in the night, a neighbor, a conservative Republican, dropped by with his son.

 

During our conversation, I asked the young man what he’d like to do when he graduated.  “Well, ultimately, I want to be a general in the army, to protect the country,” he replied, as his father beamed.

 

“Wow, what a worthy goal!” I replied, “but how do you plan to accomplish such a lofty goal?”

 

“Well, he replied, “my grades are tops in the school, I’m the starting quarterback on my unbeaten high school team, and I’ve just been elected class president, and I work part time in our local congressional office.  I’m a Young Republican and believe that socialism is evil.  Our representative has offered to sponsor my application to the U.S. Military Academy at West Point; I understand that my chances of gaining admission are excellent.”

 

“I hate socialism, too,” I replied.  The idea that some people benefit from the hard work and sacrifice of others doesn’t sit well with me, either.

 

I didn’t tell him that since I’m getting along in years and can no longer work as I did when a young man that I’m living off Social Security.  My wife has her  health plan paid by Medicare, otherwise she wouldn’t be able to see the doctor about her chronic heart condition, nor would we be able to afford the medications she’s been using year after year.

 

West Point, that’s a free engineering education, isn’t it?  Worth about half-a-million in today’s money, over four years?

 

“That’s right,” he said, and not only that, but if I ever gave up on the idea of becoming a general, after five years active duty I could retire from the military and find a good job in industry; I hear that they really like people who’ve succeeded in completing the military academy; something about self-discipline, dedication, and other desirable qualities.

 

“You’re right,“ I said, “I know people who’ve done that and succeeded very nicely.  Congratulations; go for it.  You’re future seems set!”

 

What I didn’t mention was that the troops he’d be leading someday would come mainly from the poorer ranks of the civilian population, people who had difficulty finding jobs in the private sector.  They were paid by ordinary taxpayers.  The military equipment, airplanes, bases, tanks, munitions, ships, uniforms, guns, equipment, supplies, etc., were all paid for by people who weren’t going to use them or even see them.  The military was sent into action by the civilian leadership which itself didn’t usually have to fight, consisting of older people beyond service age.

Paying for government and the armed forces seemed not much different than my receiving Social Security or my wife receiving Medicare far beyond her contributions.

 

Then there’s the question of the people thrown out of work by the poor economy or those who failed to succeed because of health problems or bad parents, bad upbringing, their own bad choices, etc.  We could support them in prison or support them before they got in trouble and found themselves in jail.  Either way, there’s a lot of people for the hardworking taxpayer to support.  But if we don’t provide them with some support, what happens to their kids?  The kids grow up as poorly as their parents and then they get in trouble, too.  We go from bad to worse unless we do something; maybe it’s better to provide these folks with a safety net just so we can help them along; they’re not all bad; some are just up against it, like the people thrown out of work during the Great Depression of the 1930s.

 

“But that’s socialism,” isn’t it, said the young cadet-to-be?

 

“You can call it anything you want,” I said.  “Jesus might’ve called it the Christian thing to do,” if there’d been Christianity in his day, which there wasn’t, that not being invented for another two centuries or so.

 

The early Hebrews, Greeks, Persian and Arabic speakers all had traditions of providing hospitality and alms-giving to the tired and weary traveler and the poor, quite apart from Christianity.  No one called it socialism, then.  That term didn’t become a bad word until Marx and Engels became fearsome and the haves began to fear the have nots.  Our founding fathers also feared the have-nots, which is why they incorporated so many anti-democratic features to our constitution and such major protections for the institution of private property.  They didn’t mind funding a navy to protect their trade routes however.  Some, today, call this socialism for the rich, capitalism for the poor.  We saw an example of it during the 2008 banking crisis when the poor taxpayer bailed out the rich bankers on Wall Street.  You didn’t hear the rich hollering “socialism” then.

 

“I’d watch out the labels, if I were you, and concentrate on what is really going on, if you can shine a light on it.  Otherwise you might be reading about “Occupy West Point” or the Pentagon, some day.”

 

He said he’d think about it.

 

“Welcome to the world, son.”

"HOME" BUTTON ON NUCLEAR MISSILES

Heard on Charlie Rose, 1-13-2012, the notion that government employed hackers have intruded on adversary computers to change the targeting code to turn their missiles around on those who launch them.

Hmm...this is good, right?   Takes care of Iran, right?  Provided that no one can turn our missiles around on us...

Sounds like a dangerous game; I wonder how we've made it this far down the road.  It took a lot of work, that's how, including on the battlefields of the world.

Also heard, that Saddam claimed, falsely, that he had WMD, our pretext for overthrowing him by armed invasion.  His intended audience was his neighbor, the intimidating Iran, with whom he'd been at war before.  But he knew that the Iranians wouldn't likely believe him, so he needed the U.S. to proclaim that he had WMD, instead, or in addition to him; so he acted coy with us and the U.N. inspectors.  If we claimed that Saddam had WMD, Iran would believe and he would have his strength from a diabolical bluff, a bluff in which he seems to have taken in Bush, Cheney, Rumsfeld, Rice, and even...ba-dum!  Colin Powell, who should've known better but wanted to be on the team.

Saddam was the snake and we got taken in.

The world is full of snakes.

Conlaw doesn't begin to tame snakes.

NOT PARANOID ENOUGH

After sending forth the item under my name below, I was politely informed by a friendly one of the Conlawprofs that I'd not been paranoid enough. Having lived through the entire Cold War, assuming it has been completed, I don't think one can be paranoid enough, so I agree with my good correspondent, alas.  Here's the exchange:

***

Bob, you are not paranoid enough. The system did not go hopelessly wrong in the 1930s. It went wrong when Taney's court failed to pull a bush v gore after the 1860 election. If only Douglas, Breckinridge, or whoever had sued, the court could have ruled that the vote was blatantly unconstitutional, because descendants of slaves had voted..... Then all this twisted "equality" jurisprudence would never have happened.  So it's still reversible now!  Courtesy of Scalia, Thomas, etc etc. Happy New Year!   --- On Sun, 1/1/12, Robert Sheridan <rs@robertsheridan.com> wrote:   From: Robert Sheridan <rs@robertsheridan.com> Subject: Right of Private Property To: "Con Law Prof list" <conlawprof@lists.ucla.edu> Date: Sunday, January 1, 2012, 4:55 PM   In an interview today of GOP Iowa primary candidate Congressman Ron Paul of Texas, by CNN's Candy Crowley, I was struck by his centeredness on the right of private property as he sees it.   Asked his position on the Voting Rights Act of 1965, a product of the Civil Rights Movement to enfranchise blacks effectively denied the right to vote in the South throughout the era of Jim Crow, he said that the VRA was the wrong way to go about achieving this reform because it denied rights of private property and private decisionmaking (to those who enjoyed such rights, or power, other than black, that is), w/o saying what he would have preferred instead.  In other words, let them (the blacks) hang in the wind of the right of private property.   He cited the criminalization resulting from the anti-drug laws as an example of a regime that put a disproportional number of blacks and other minorities of color behind bars.  These laws limited individual choice, i.e. personal autonomy to make bad decisions as well as good.   With each subject put to him by Crowley, Paul returned to the right of private property, as though this notion underlies every issue in the country that he would seek to reform if elected.   It struck me that he so clearly seemed to have his views rooted not only in the Lochner Era, which exalted private property and the notion of 'freedom of contract' (from the management point of view in the labor-management conflict realm), but in the earlier laissez-faire capitalism era of the robber barons of the so-called Gilded Era of the late-19th C. post-Civil War era of unfettered industrialism.  His panacea for all problems seems to be a return to what he seems to view as a Camelot era in which the summum bonum is unrestricted rights to private property where landowners, for example, have unrestricted freedom to do what they wish with their land and the public be damned.   Part of what motivates him, as I see it, is the fear of socialism represented by a government that regulates private ownership and decisionmaking in order to achieve social, economic, and politial reforms; the New Deal would be the chief villain in this regard, as well as the liberties found and enunciated by 'activist judges' on the Court, with Wm. O. Douglas no doubt leading the charge down the wrong road starting with Griswold.  The right of private property and private decisionmaking is the shield, and sword, against creeping socialism, socialized medicine (Obamacare), and anything else represented by government seeking to protect minority groups that seem to need protection including men, women and children in the workplace, which brings us to Lochner itself, in 1905.   Where does this fear of the dreaded monster socialism originate?  As a Cold War product, I'm well-familiar with the power of that word, a dreaded thing to avoid at all costs to avoid being tagged red, or pink, or a Commie or fellow-traveler.  Yet the dreaded S-word seems to be thriving as a political bludgeon, despite the fact that we seem to have socialized government, socialized military power, and socialized banking and finance, if the bailout of 2008 and following can be included in the meaning of that word.   The odd thing is that laissez-faire capitalism was a product of Andrew Jackson's effort to get the government to stop supporting select private enterprise, particularly Biddle's 2nd Bank of the U.S.  T.J. Stiles, in The First Tycoon, The Epic Life of Cornelius Vanderbilt, notes how strongly the Commodore felt against the power of government putting its thumb on the scale of competition by granting "franchises" (monopoly charters) to favored patricians such as Livingston with his right to monopolize commerce on the Hudson River, until Gibbon v. Ogden, the famous anti-monopoly (steamboat) case, that is.  To Vanderbilt, , a Jacksonian, laissez-faire capitalism meant getting rid of government favoritism in support of his competitors; he was anti-monopoly, at least the government supported variety (after this, it was every man for himself).  This seems to have grown into Ron Paul's view of the right of private property, as I see it.   Since attitudes such as these eventually become the subject of our study, I thought it would be interesting to lay it out here.   Perhaps this John Maynard Keynes quote applies to Ron Paul:   “The ideas of economists and political philosophers, both when they are right and when they are wrong are more powerful    than is commonly understood. Indeed, the world is ruled by little else. Practical men, who believe themselves to be quite   exempt from any intellectual influences, are usually slaves of some defunct economist.”    rs     -----Inline Attachment Follows-----   _______________________________________________ To post, send message to Conlawprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof   Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

 

POLITICAL ANONYMITY

Bob Egelko, the S.F. Chronicle's law reporter, reports that a federal judge has ruled that donors supporting a controversial anti-gay marriage ballot proposition have no right to remain anonymous.

This strikes me as odd.  Back in the day, at least one jurisdiction in the South enacted a law requiring the NAACP to disclose its membership list, as a way of frightening away membership and support.  The Court held the law unconstitutional.  The right to participate anonymously to avoid repercussion was held to be a constitutional right.

In another case, a local ordinance required that people leafleting neighborhoods register first with the police department or homeowner's association, I forget which.  Same ruling; the right to leaflet anonymously was held to be part of freedom of speech, publication, and the like, such as assembly.

The right to vote in a public election, say for president, Congress, or to the state bench, is the right to vote anonymously.

I don't see how those who contribute to political organizations can be required to disclose their true identity. Even more-so following the Citizens United case which held that corporations have the right to speak politically, meaning to spend all they want despite a century of legal restrictions.

How can membership in a political agitation and lobbying organization and leafleting, anonymously as to both, be held constitutionally protected, but not contributing to support a ballot proposition?   Especially when the right to vote anonymously is itself held to be one of the most telling earmarks of democracy.

I'm having trouble accepting the reasoning of the judge, below, who says, in effect, "This is different."  What's different about it?  That he cannot foresee the negative political repercussion?  

Where?  

Everwhere?  

Certainly not in San Francisco.

Judge: Prop. 8 donors have no right to anonymity

Bob Egelko, Chronicle Staff Writer

Monday, November 7, 2011

(11-07) 15:57 PST SAN FRANCISCO -- A federal judge says donors to the $40 million campaign that banned same-sex marriage in California aren't entitled to the anonymity that the U.S. Supreme Court has granted to minor parties operating in a hostile climate.

Only organizations like the Socialist Workers Party during the Cold War and the NAACP in the segregated South - "small, persecuted groups whose very existence depended on some manner of anonymity" - have been exempted from laws requiring that members and contributors be disclosed, U.S. District Judge Morrison England said Friday.

He said there is no evidence that the 7 million Californians who voted for Proposition 8 in 2008 could be considered a "fringe organization" with unpopular or unorthodox views, or that leaving donors in the public record would frighten away contributors to future campaigns.

England's written ruling followed his decision at an Oct. 21 hearing in Sacramento to dismiss a lawsuit by committees that backed Prop. 8 seeking an exemption from the state law that makes public the names of all who contributed $100 or more.

James Bopp, a lawyer for Protect Marriage and the National Organization for Marriage, said Monday he would appeal England's ruling. He predicted higher courts would find that campaign contributors who face likely harassment should be shielded from disclosure even if a majority of voters supported them.

"An aggressive minority can intimidate a much larger group of peace-loving and law-abiding citizens," Bopp said.

Prop. 8 defined marriage as the union of a man and a woman. Names of donors on both sides of the hotly contested campaign have been listed on the state's web site since the November 2008 election. England had refused to block disclosure of the pro-Prop. 8 contributors in January 2009.

The lawsuit included 58 declarations saying Prop. 8 supporters were subjected to vandalism, hate mail, boycotts and death threats. England said the plaintiffs presented much the same evidence in 2009 and it did not justify exempting campaign contributors from disclosure.

The "relatively few" incidents of criminal threats and violence were referred to police and prosecutors, the judge said. He said most of the evidence fell into other categories: predictable excesses by both sides in a bitterly fought campaign, like lawn sign vandalism; legally protected activities, like economic boycotts; and events not clearly connected to Prop. 8, like church protests in other states.

The measure's sponsors presented no evidence that harassment made it harder for them to raise money during the campaign or that it has continued since the election, England said.

He also rejected a claim by Prop. 8 sponsors that the $100 threshold for disclosing donors' names, set in 1974, is obsolete because of inflation. Other courts have upheld lower limits, England said, and the disclosure requirement helps voters make informed decisions about ballot measures.

E-mail Bob Egelko at begelko@sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/11/07/BA0Q1LRL5E.DTL

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JAPAN BREAKWATER; SELF-DECEPTION, THE BEST KIND

In order to prevent destruction of cities, Japan, after WWII, built huge seawalls.  The tsunami in northeast Japen earlier this year in Fukushima proved that they didn't work.  First the earthquake, then the tsunami, then the collapse of the seawall, or dike, and then the meltdown of the nuclear reactors erected behind them.

The Japanese have a reputation for being intelligent, right?  Right; but they are also known for being human, which means that they have their share of stupidity, not to mention the cruelty they put on display during WWII.

Now, Japan is set to rebuild their seawall, no doubt to exclamations that this time it will be different; this time the dike will hold, come the next tsunami, which is only a matter of time.

Why would they want to repeat this mistake?

Why not, instead, erect a series of strong pylons, side-by-side, next to each other in a string along the coast.  This time, if they say that this wall of pilings will prevent the next tsunami from destroying the town behind the wall, and the inhabitants, the people will know it's not true.  Build a solid wall and they believe the deception.  Neighboring pylons will contain the seeds of warning that such assurances are not true.  Not only that, they may serve to break up the force of the next tsunami.  

How do I know?  

I don't, but I do expect that those who hear the assurance will not be so credulous as to what the authorities say.

In this case, partial lies will serve better than the big ones.

On the theory that we're our own worst enemy, we must take care not to deceive ourselves, repeatedly.

The article that inspies this is here.

 

DISORDERLY EXPRESSION

A few months ago San Francisco BART (Bay Area Rapid Transit) authorities disabled the WiFi capacity in the subway to prevent flash mobs from disrupting operations in the underground stations by gathering suddenly in response to a Tweet.  

The protesters were outraged by two fatal shootings by BART police in recent months.  

In one, a young BART cop, Johannes Meserle, attempted to use his Taser, an electric shock device, to subdue a suspect, Oscar Grant, who was being held down, lying prone, by fellow officers.  In reaching for what he thought was his Taser, the officer unholstered his service revolver and shot the man dead; the officer was charged with murder, found guilty by a jury of manslaughter, and served a term in state prison.

The recent protesters would suddenly gather as a group underground and disrupt operations, making it difficult for ordinary riders to enter or exit the station.

So shutting off the protesters' ability to alert each other to assemble to disrupt transportation was a good thing, right?

Not so fast.  

Why?

Because in shutting down the ability of the protesters to communicate, BART authorities, a quasi-governmental agency with rule-making and enforcement authority, was also interfering with the ability of non-protesters riding the subway to communicate.

Why is that important?

Suppose the ordinary rider wanted to call the police or fire department?  Or BART officials?  Or family members?  Or someone at their destination to advise that they'd be delayed?

Why should the actions of a few cause the elimination of your right to communicate, assuming that you are an ordinary rider not interested in joining the protest?

After much public discussion, BART authorities saw the error of their ways, under threat of federal investigation...it is a federal crime to interfere with electronic communications under the anti-wiretapping section 605 of the Federal Communications Act...and  decided that it was better to protect freedom of communication for all than to shut it down for all to thwart some.

What raises this issue again is that Britain has had to face the same issue as to whether the activity of some in using the new electronic communication media such as text messaging and tweeting should result in shutting it down for all in order to thwart messages that the government dislikes.

Recall that earlier this year, in what is called the Arab Spring, governments have been overthrown in Tunisia, Egypt, and Libya, with uprisings in Yemen, Bahrain, and Syria, against autocratic governments. Saudi has taken preventive measures to avoid uprisings arising in the first place.

In one of the world's great examples of the law of unintended consequences, Egypt's Hosni Mubarak tried to cancel the ability of the protesters in Cairo from summoning supporters to Tahrir Square by shutting down the central, government controlled, electronic communications facility.  

This will teach them, Mubarak's lieutenants must have figured, now they won't be able to call each other to assemble.

Ironically, even more people began to assemble, spontaneously, it seemed, and the anti-Mubarak demonstrations grew even more powerful, despite the lack of ability to text and tweet each other.

What had happened?

Many of the supporters of the protests had been armchair supporters, cheering them on privately by watching on TV or the internet.  Without the abiliity to receive messages, many of them figured, "I'd better go down to the square to see for myself."  The passivist had been turned into activists.

If you were a Mubarak supporter, would you have imagined that this could happen?

So the British government, after at first supporting the power of government to shut down the ability of demonstrators and rioters (such as at Tottenham, a London suburb, recently, where flash mobs burned stores and buildings over a period of several nights), has now decided that shutting down the rioters' communications ability was poor policy; for one thing, it prevented the authorities from reading the text and email traffic in order to assess the magnitude and location of the threat.  Here's the article.