The Regulatory State of Mind & the Choices it Chooses - Casting a wide regulatory net to neuter us all Part II

Hold on tight. To your Rights... and not your parrrty! (Cross posted at 24th State)
In digging into this sort of thing, regulations, where they come from and why, it's tempting to go off into which big businesses contributed most to which political party, the left or the right. But despite appearances, this really isn't a Left/Right issue. Sure the left is typically more enthusiastic for more and new regulations and controls, but there have been so many little 'r' republicans from Teddy Roosevelt to Richard Nixon to John McCain, and most points in between, as to make the 'Party' question irrelevant. It's not a political party issue, it's a philosophical issue, constitutionally limited government, or proregressivism, and the later choice is made in both parties.

More practically speaking, it's a 'have power & seeking influence' vs 'have wealth & seeking advantage' issue, ,. combined with an easy familiarity with political expediency over constitutional principles, and sad to say it abounds on all sides of the aisle, they unite collegially under the amorphous umbrella of 'Doing Good!', especially among those who see no problem with government mingling with business. What they both demonstrate above all, is an utter absence of understanding of what this nation desperately depends upon -and which is no longer taught - the importance of property rights.

Intentionally or not, what these do gooder's are doing, is voluntarily creating what amounts to a series of nice comfy house slave positions for themselves and not a few lesser slots in the kitchen for the rest of us, wherein they promise that none of us will need to worry or strive in any way in order to meet our 'needs' again, our wise regulatory masters will do it all for us. Rather than a simple old plantation owner, our masters today are to be a set of regulations, administered by regulators and represented by elected officials who are influenced by those who can afford them or help them to look good (and if you think I'm exaggerating, hold that thought for a bit).

And, of course, we don't have to worry about any slave driver's... no, today that function is to be taken over by friendly folks like the I.R.S.

Isn't that a relief?

What should be shocking, is that anyone sees the process of regulating industry as anything other than bargaining for power and control between those who have and are able to affect, influence or sell power, and those who are interested in gaining control of it. What claim to 'transparency' can possibly be made, which can't even see through that?!

Who'll regulate the regulators? Doh... the regulators of course!
This is a question well worth looking into, especially as regulatory control has lately bid to control the majority of the entire United States economy. Regulations have always been touted as 'looking out for the little guy', but in practice they have always been a means to enabling the government to come to the aid of less ethical, more politically connected, big businesses, and that has been the case from the very beginning. A good example can be found in the formation of the Interstate Commerce Commission, which was sold as a way to control the Railroads and prevent them from gouging the public with high prices and the threat of diminished services - but what it actually did was heavily favor the politically powerful major railroads, at the expense of the more competitive market oriented railroads which were nearly the publics only source of lower prices and better services,:

"...The public eventually began complaining of the monopoly pricing and corruption that were inherent features of the government-created and -subsidized railroads.

The federal government responded to the complaints with the Interstate Commerce Act of 1887, which was supposed to ban rail rate discrimination, and later with the Hepburn Act of 1906 which made it illegal to charge different rates to different customers. What these two federal laws did was to outlaw Hill's price cutting by forcing railroads to charge everyone the same high rates.[21] This was all done in the name of consumer protection, giving it an Orwellian aura.

This new round of government regulation benefited the government-subsidized railroads at Hill's expense, for he was the most vigorous price cutter.
..."

That has a familiar ring to it... doesn't it? That there should be one rate for all? That it should be illegal to charge different rates to different customers? Whether we're talking about Railroad Neutrality, or Net Neutrality, large, established companies don't like having to manage and track and charge different rates for different customers based upon their demands upon the system, cutting away all excessive costs and waste in order to reduce charges to the least possible amount that will still allow a profit. No matter that the competition to refine those processes and considerations have traditionally translated into the lowest prices for the most customers; what it meant to them was more effort, heavier competition to the point at which only the best mgmt & personel can survive - and big businesses, particularly those who thrive on political trade, rarely welcome any of that - such an environment makes it almost impossible to engage in favoritism and other self important indulgences.

But wait a minute, you say, isn't the free market based on competition?

What Proregressives Could Learn At Hogwarts
Yes, competition is a big part of the free market - but so is something else - virtue (when you finish chuckling... ask yourself why). The ugly truth is that more often than not, those who become successful in the free market, too frequently become it's greatest enemies, and they find many willing accomplices in government regulations and regulators. There's a line from one of the Harry Potter books, where Prof. Dumbledore tells Harry,

"The time is coming where we will all have to choose between what is right and what is easy"

That is a timeless truth, and unfortunately at this point in time, Harry Potter is just about the only place in our popular culture where you might have a chance of learning it. Once upon a time, it was a well known lesson, during the Founder's era it was a very popular and powerful one, the subject of famous paintings, and ancient tales intrinsic to Western Civilization (which pretty much explains why they are not part of Arne Duncan's 'educational reforms' today - that fundamental transformation having been nearly accomplished already),

"The moral allegory of Hercules’ Choice provides a straight thought-line from Renaissance humanism to the creation of the United States and its political symbols. Among classicists, it was one of the most beloved and inspiring tales of the eighteenth century. John Adams sought to make Hercules' Choice the national emblem in 1776:

• I proposed the Choice of Hercules, as engraved by Gribeline [above] in some Editions of Lord Shaftsbury’s Works. The Hero resting on his Clubb. Virtue pointing to her rugged Mountain, on one Hand, and perswading him to ascend. Sloth, glancing at her flowery Paths of Pleasure, wantonly reclining on the Ground, displaying the Charms both of her Eloquence and Person, to seduce him into Vice.

-John Adams invokes Hercules as a model for his own self-development. The note may be found in a diary entry, Jan. 1759, in L. H. Butterfield, ed., Diary and Autobiography of John Adams, vol. 1: Diaries 1755-1770, Belknap, 1962, 72."

One of the reasons we need to be so on guard against big government and big business 'negotiating' for the 'greater good', is that one of the first things many business people turn upon once they become successful, is the Free Market! Competition is difficult, it's tiresome, and it is sooo much easier to control your market through the influence of your political connections in the government, who will 'stand up for the people!' and implementing policies and regulations which have the handy side effect of imposing barriers and burdens on your market, making it much more difficult for smaller competitors to hold on to their share, or for any new competitors to even enter it.

Sure there are costs involved for the bigger businesses to meet those requirements, but it's a bargain when you stop to consider what it relieves them from having to do instead - namely compete. Those are the choices we have allowed our government to be making for us, and they have put us on the easy, downward path of good intentions, and you know which road they pave.

Whether it's Net Neutrality, or a 'Free Press' subsidized by the government, Healthcontrol, Green initiatives, handicap policies, public minded initiatives, and nearly every other variety of market regulations, they all serve the uncompetitively minded. Sure they impose costs on big businesses too, but they can afford them - whereas a new startup, or a competitor whose only advantage in the market is their ability to offer lower prices to you - they cannot afford them - and that means that you soon lose the possible savings which they may have been able to produce for you and me.

For every James J. Hill building his Northern Railway himself, there are twenty Vanderbuilt's who will welcome and seek the embrace of government assistance and collusion. And changing the names to Google or Verizon doesn't change a thing. Or General Motors.

To the politically connected, but fat & lazy, whether they ply their trade on old iron railroads or the new information super highway, the easy solution remains the same: Create a new set of regulations that raises all rates and lowers the amount of service which most customers across the entire market will come to expect. Another useful side effect is that fat & happy political businessess are able to avoid any number of unforeseen consequences through competitive innovations, because regulations demand more and more instances of mandated conformity, more and more obstacles to entering the market for new comers. Competition is decreased, the need for competent skilled personnel is reduced and the 'value' of politically connected personnel increases.

Here's an example from the beginning of the regulatory era,

"...The Interstate Commerce Commission soon created a bureaucratic monstrosity that attempted to micromanage all aspects of the railroad business, hampering its efficiency even further. This was a classic example of economist Ludwig von Mises's theory of government interventionism: one intervention (such as subsidies for railroads) leads to market distortions which create problems for which the public "demands" solutions. Government responds with even more interventions, usually in the form of more regulation of business activities, which cause even more problems, which lead to more intervention, and on and on. The end result is that free-market capitalism is more and more heavily stifled by regulation."

Unforeseen consequences tend to crop up more and more, such as with these instances (H/T Reboot Congress) in the form of unlooked for shortages in the supply of Helium,

"But helium is also a non-renewable resource and the world's reserves of the precious gas are about to run out, a shortage that is likely to have far-reaching repercussions.

Scientists have warned that the world's most commonly used inert gas is being depleted at an astonishing rate because of a law passed in the United States in 1996 which has effectively made helium too cheap to recycle."

, and in and the ability to reap profits which aren't really dependent upon what you produce, "Flash Crashes" in the Stock Market,

"The mayhem had been primarily caused by an "overreliance on computer systems and some types of high frequency trading" strategies that roam the market en masse, looking to pick off pennies of profit....

Behind these changes, beginning in 1975, was a zeal to liberate the individual investor from the clutches of the archaic market makers who made a good living taking "eighths"�12.5 cents�for every share bought and sold.

The government later found Nasdaq dealers were even more gluttonous than first imagined. And by the time the last big market reforms were issued in 2005, the intent was to "give investors, particularly retail investors, greater confidence that they will be treated fairly," the SEC said at the time.

As spreads squeezed from eighths to pennies, a new batch of electronic-trading networks blinked into action. Volume trading was the only way to make money."

What has followed from regulatory policies and actions beginning way back then, as it still does now, is chaos. They have never accomplished what they were intended to accomplish, have never 'reigned in' who they were billed as targeting, they have never protected 'the little guy' and they have always, always, caused worse conditions than they ever sought to alleviate.

This is the pattern of results which regulatory agencies have produced since they began, and is what will continue to be produced today and through all our tomorrows - if we don't end them: smaller businesses and customers will pay higher prices for ever diminishing services - it's what happened with the railroads, and is what happened with the 'Public' Utilities, the Airline industry, the Banking industry and our current health care insurance industry... and it can no longer be thought of as a new or unexpected phenomena! There are a hundred years worth of easily discoverable history associated with this process - why don't we hear about this in school? Or in the media?

How about from 'consumer advocates'? You'd sure think you would, since the consumer has been the one that's born the brunt of all the regulatory good done unto them, and it has been known by them as far back as one of the first of the breed, Upton Sinclair, the muckraker who's book "The Jungle" provided the impetus for Teddy Roosevelt to create the forerunner of the FDA, the granddaddy of all regulatory agencies, said

"The Federal inspection of meat was, historically, established at the packers' request. It is maintained and paid for by the people of the United States for the benefit of the packers."


Gabriel Kolko, historian of the era, concurs. "The reality of the matter, of course, is that the big packers were warm friends of regulation, especially when it primarily affected their innumerable small competitors." Sure enough, Thomas E. Wilson, speaking for the same big packers Sinclair had targeted, testified to a congressional committee that summer, "We are now and have always been in favor of the extension of the inspection, also of the adoption of the sanitary regulations that will insure the very best possible conditions." Small packers, it turned out, would feel the regulatory burden more than large packers would.
"

And so it's been demonstrated to play out again and again, from the establishment of the ICC and the FDA, and on through the intervening century's worth of alphabet agencies on down to today's latest offerings of 'helping the little guy' with ObamaoCare - time and again, the worst of big businesses profit at the expense of smaller competitors, and especially at the expense of We The People.

This isn't a condemnation of 'Big Business', if a business can get big, titanic even, through providing it's customers with a product and service they want to purchase, and stay there by remaining competitive with their abilities & services, even to the point of being so efficient as to be the only company serving that need (and no, that is NOT a monopoly), I say fantastic and bully for them. But those that want to indulge in a 'third way' of partnering with government to maintain their positions... those should be roundly condemned and despised. We should especially note that these politically successful businesses manage to create their partnerships with government, in large part thanks to those well intentioned do-gooders like our PC tech writer in Part I, those who work so hard and with such little thought and forethought, so as to sway public opinion into not seeing what is right up and in their very faces.

Surprise.
Is that really surprising? Maybe we can make all this transparency a little clearer if we try looking at it from another angle, What is it, do you suppose, that Regulators are actually after? In light of what we just reviewed, it can't be any of their stated goals, not if there is even a hint of competence that is to be assumed to exist in either their agencies, or the legislators who 'oversee them', or the 'consumer advocates' who advocate for them,

So what is it that they are in the business of - Justice?

Nooo... no, no...no, that's got to be ruled out right off the bat.

Why? Well, can you really claim to be upholding & enforcing Justice... without there being an actual crime having been committed in the first place? Think about it, if the police came to your door tomorrow and said

"We've had reports that you purchased ammunition yesterday, and seeing as studies proven that most firearms incidents involve ammunition and pose a grave risk to public safety, we're going to need you to go ahead and wear this monitor at all times and make regular reports to our dept, we're going to need to see regular reports of gun cleaning, and of course verify that you're using approved oils & clothes, and proof they've been disposed of properly..."

, would you be willing to call that 'justice', or even justifiable?

I really hope not. We'll have a look at what they are after, and what best to call it, in the next post.

Bloomberg, Obama and the Mosque Mask of Social Vandalism

I got a comment by reader Ex-Dissident, about my last post at 24th State and cross posted here, he was a bit conflicted; he believes in the importance of property rights, but he also felt that that there were times, such as with the mosque being proposed near where the Twin Towers once stood, that

"... the needs of the community may at times trample over property rights."

There's a confusion here that has become so common, that I think I'll go a bit out of order to address it now, before finishing out the series of posts I just started, because it is important to distinguish between true property rights, true in the classical liberal sense which our Founding Father’s understood to be rooted in the nature of Man, and the mere gaudy mask of property rights, which is defined by legislators for ‘the greater good’.

There is a huge difference between trampling over property rights (always a bad, bad thing), and upholding the real property rights which people do have in their local community, and which they have a real right to exercise so as to prevent their community from being defaced by social vandals.
There IS a reasonable expectation which people have in their community, at the direct democracy level of the ward, assembly & township level where members of the community should, and do, have a say in the shared aspects of their community.

Hardcore libertarians, or the leftists seeking a debating point, may say,

"Property rights are 100%! If I don't have the right to paint my house in purple zebra stripes & polka dots, then there are no property rights! If I can't do that, then you're violating my right to my property!"

To which I'll say, Property Rights are absolute, within a given context - if you erase the context, you erase what it meant and why it meant it, you cannot pretend that a simple statement will be valid or clear across all contexts. My old buddy Aristotle nailed it in his Nicomachean Ethics with this,

"...for it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs..."

, if you ignore that, then you are no longer dealing with legitimate rights or principles (or even Reason, for that matter), but with categorical imperatives which ultimately wipe out all principles and all the rights of all the people. Especially in politics and law, there are degree's of precision which can and cannot be reached, depending on the context, and it is important to realize it.

There are legitimate, difficult to define areas, where what you do on your property affects the ability of other members of the community to enjoy their property. When you purchase property in a

Net Neutrality - Casting A Wide Regulatory Net To Neuter Us All - Part I

Looking beneath the transparency (Cross posted at 24th State)

Well... good news ladies and gents out there in the free and open skies of internet land, public spirited folks from the IT world, are looking out for bad deed doers and speaking up for your interests. There are such keen eyes as these from a vigilant tech writer for PC Magazine (never realized how well named it was before) who has expressed his dismay at the regulatory process... not over the interference of government into the free flow of information across the internet... no, no... no. He has seen reports of something 'fishy' in the land of regulatory purity, and is shocked at what he's found.

Here, have a look:

"The end of the FCC negotiations is actually good news. What the FCC should do is execute its duties to oversee the industry without apologizing or asking permission. The FCC negotiations sought to compromise with the industry--the very nature of which implies that the agency would be making consessions in order to appease companies like Verizon and Comcast.

Negotiation and compromise are cornerstones of the political process, but they should be conducted openly and involve all parties. The problem with the FCC efforts was that the closed-door meetings excluded most of the affected parties from the process."

To useful ... uhm... pundits... like our PC tech writer here, they feel that government regulation of industry is a good thing, that 'Net Neutrality' will be a benefit to all Americans, and they are only upset that the process hasn't had more transparency involved in it. I'd like to look at that here, and go a bit beyond that 'transparency' to get a wider perspective than their little government issue world viewer window might otherwise afford us. But first, let's try looking through only that itty bitty viewer they use, and see what we can see.

I know I see one thing here that I particularly enjoy, and that's the line "should be conducted openly and involve all parties."... do you suppose that this tech writer for PC Magazine has ever ventured out and onto the internet? I don't know how many providers there are out there, my quick Googling popped up around a hundred or so big and small, providers, still, I do believe it might be just a few more than can conveniently cozy up around a conference table and hash out some regulations that will be 'fair' to all parties. And while he's not alone in his concern for all us little people... what of the millions of users who will be affected and deprived of their ability to pay more, or less, to receive the service they most value? Should the choices of such little people stand in the way of the 'greater good' that can be served by giants like Google & Verizon who are, after all, just intent on 'doing good' unto us?

Google & Verizon are both quick to respond with something having the gist of 'We aren't going around Net Neutrality, we're for it! We're for fair and even distribution of bandwidth... enforced by the power of government regulations, as opposed to having to deal with other ISP's who won't let us do what we want, because they care about serving their differing and annoying customers choices & preference...', well... they leave that last part off of course, but even so, with all that fairness on their minds, what is it that you suppose they are so carefully negotiating about?

After all, according to Google spokesmen there's nothing to be concerned about

""Google has been the leading corporate voice on the issue of network neutrality over the past five years. No other company is working as tirelessly for an open Internet," counsel Richard Whitt argued in a fact sheet on the issue. "We're not saying this solution is perfect, but we believe that [this] proposal ... is preferable to no protection at all."

Whitt pointed out that there is currently no method for the federal government to enforce equal access principles. His assertion does have basis in the facts: following the Comcast decision, it is now case law that the FCC does not have regulatory authority over broadband access under current rules.

Google and Verizon's proposal would for the first time give the FCC a legal basis to ensure net neutrality principles, and Whitt noted that Verizon had voluntarily already agreed to abide by the requirements set forth even without legislative action that would make it mandatory.

Now that is something which is really deserving of some of your own mental bandwidth, "...for the first time give the FCC a legal basis to ensure net neutrality principles...". Just bookmark that in your mind, and we'll return to it in a bit.

Mr. Googleman continues:

A good portion of the criticism has come on the issue of wireless traffic, and Whitt admitted that in order to advance the deal, it agreed to not ask for net neutrality principles on that traffic. He argued that due to bandwidth constraints, it is more necessary to manage traffic actively on wireless connections.

"This is a policy proposal -- not a business deal," he wrote. "Of course, Google has a close business relationship with Verizon, but ultimately this proposal has nothing to do with Android."

Regardless of what happens with net neutrality, in the end it will come down to action in Washington. Whitt said that it will ultimately be in the hands of legislators and regulators to do what they need to do in the space to ensure an open Internet.

"We're not so presumptuous to think that any two businesses could -- or should -- decide the future of this issue," he concluded. "We're simply trying to offer a proposal to help resolve a debate which has largely stagnated after five years."
"

Hmmm... that "...will ultimately be in the hands of legislators and regulators to do what they need to do..." Knowing a little bit about the tech world, that doesn't seem like such a good idea to me, just on a basis of functionality, not to mention showing a wee bit less concern for 'fairness' than seems the case of our public minded PC tech writer, who no doubt is only concerned about the plight of the little guy, and surely many people are concerned that all peoples should get their fair share of internet fairness... surely no one wants’ any iOliver Twist's coming round with their blackberries & begging "Please, sir, I want some more?"

But without questioning the goodness of our PC writers PC priorities, ask yourself something... when was the last time that you or your buddies were sitting around having an animated discussion slash argument about... properly allotting bandwidth between various ISP providers so that you could get your fair share of bandwidth?

Has that been a big flash-point in your home or favorite gathering spot recently? Are you or your friends deeply concerned about how bandwidth is allotted?

Is anyone you know confused about whether or not you can pay for greater crazy fast download speed if you want it... or not?

I'm betting the answer is mostly a big NO.

Do you think that the Federal Government has purposely taken the time out of the many issues facing them and demanding their attention, in order to arbitrate the fairness of how companies should negotiate their deals with each other? Do you think they are really deeply concerned about your ease of downloading iTunes?

Hopefully that's a no as well.

So what do you suppose might be going on here?

Hmm?

A Solution in search of a problem
If all you want to say is that 'everyone gets the same bandwidth ...' what's to quibble about in secret negotiations, let alone cause the secret negotiations to break down?

You needn't take that as an accusation of nefarious deeds being done, but hopefully it does make you at least a bit curious about what they are trying to do, which is, in typical proregressivist fashion, to plan out, from the top down, the 'perfect solution' (at least it's not a 'final solution'...) to plan out ahead of time (maybe even in 5-yr increments) how they can meet the 'fair needs' (as determined by them, not you) of what users (you) may require... without having to deal with any pesky issues - such as any of those users own preferences, wish's, judgments and choices... all those sorts of things the neanderthalic 'free market' considers so valuable.

So why is this such an issue? When you're looking for a little perspective on the days events, sometimes it helps to look back to the ODWG's (old dead white guys), and when you're looking for some perspective and insight on how people behave, respond and react in terms of pressure, politics and turmoil, one of the oldest of them, Thucydides is hard to beat, here's one almost selected at random, from the Melian dialog, where the Athenians who once prided themselves on being an exceptionally Just and successful society, the school of their world, now found themselves more concerned with using power to get what they wanted (ok, almost selected at random),:

• "holding in view the real sentiments of us both; since you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must."

Just let that idea settle into your noggin... then maybe mix it in with Mr. Googleman's "...for the first time give the FCC a legal basis to ensure net neutrality principles..." and "...will ultimately be in the hands of legislators and regulators to do what they need to do...", let it stew a bit, see if you begin to get a handle on where your interests and preferences fit into that picture and we'll come back to it shortly. In the meantime, here's two more clues that don't seem to go together all that well, one from last month, about our ever thoughtful government seeking to expand broadband service to the wilds of Missouri, with our own Sen. Claire McCaskill, looking out for her peep's:

"At the meeting McCaskill, D-Mo., espoused the need for high speed broadband to rural America as an economic necessity. “Without fast speeds to the Internet, our commerce, our job creation in this country is going to continue to fall behind,” said McCaskill.

Chairman Genachowski spoke of the virtues of his Third Way proposal and how it would support rural broadband efforts.
"

Huh. Well that sounds all admirable and swell. But then there's this, from about four years ago:
Internet Neutrality: A Solution in Search of a Problem

"As the Senate holds hearings on net neutrality, it is important to avoid calls for new regulations or mandates that would impede broadband deployment in the United States. Net neutrality is a vaguely defined term that generally refers to access to the Internet, and the need to keep access open to all consumers. While this is an important question for consumers, new mandates on Internet access could reduce incentives to build new high-speed broadband networks or invest capital in innovative new technologies...

Dr. Wayne Brough, Chief Economist at FreedomWorks commented that, "Currently, the United States ranks 16th in the world when it comes to broadband deployment. Introducing new mandates or regulations on networks will only hamper deployment of new networks. We need to look to the future and unleash the innovation and technologies of the next century. To bring these technologies to consumers, we need to avoid unnecessary new mandates."

So while Claire's trying to be ever so helpful to Missourians, promoting the kindly and virtuous Genachowski's Third Way proposal (what does that mean, 'third way'? That's a really good question - you really should answer it, careful though, might prompt a few more questions), there are others who seem to be having the oh so startling thought that new Regulations, 'guidelines' and government interference might actually add costs and slow & even reduce the spread of broadband service throughout the wilds of Missouri, and elsewhere as well.

Here's something that's a little closer to the matter from the American Spectator, which might help shed a little more light and connect a few dots for us:

"In a statement, Free Press said: "We welcome the FCC's decision to end its backroom meetings. Phones have been ringing off the hook and e-mail inboxes overflowing at the FCC, as an outraged public learned about the closed-door deal-making and saw the biggest players trying to carve up the Internet for themselves. We're relieved to see that the FCC now apparently finds dangerous side deals from companies like Verizon and Google to be distasteful and unproductive."

"Verizon and Google to be distasteful and unproductive", yeah, now that sounds just like our friendly PC Tech Writer... very unpleased with backroom deal making and concerned with our fair servicing... but wait, there's more,

The only problem with that statement, it turns out, is that Free Press was part of those "backroom meetings" and at the time the FCC negotiations were canceled, Free Press officials were actually holding a private meeting with FCC Chairman Julius Genachowski in his office.

Free Press, which was founded by Marxist Robert McChesney, and is run by well-known political activist Josh Silver, is a founding member of the Open Internet Coalition. The OIC's executive director, Markham Erickson, had a seat at the table during every negotiating session held by the FCC. "

Ah. Sorta sounds like what's being said for the public consumption of the peep's, and for the useful idiots... er... pundits... like our buddie the PC Tech Writer, just might be a bit different than what's actually taking place behind closed doors, doesn't it? Seems like we're getting a bit more to the heart of the matter, or at least closer to the closed door of the back room where the deals are being made, and if history is any indicator of what's being cooked up (and it is), then you can bet your bottom dollar (while you still have one) that what it doesn't involve, is your well being or best interests.

Ladies and gents, the allotment of bandwidth, and determining whether Verizon or Comcast get's to handle more video across their lines, cable, wired or wireless, at their discretion and price points, is so far besides the point as to be left pointing right back at yourself.

The issue here is Power. And one of the most consequential uses of power in recent history.

Seriously
This isn't a new issue. It's not a new idea. It didn't arise with Verizon & Comcast. It didn't even arise with the Obamao administration.

Ed Morrissey of Hot Air noted:

"Genachowski needed an agreement that involved the private sector in order to give him and Congress political cover for a net-neutrality arrangement that leaves the FCC in charge of the Internet — and perhaps even content, or at least access to it. Without an industry consensus, Congress isn’t about to impose yet another big regulatory burden in a season where voters are already angry about government overreach. Genachowski will have to either wait for the lame-duck session or once again abuse the rule-making process, which the courts have already blocked once and Congress has demanded he stop doing."

What amounts of power and control do you think might accrue to government in general, to their agency in particular, and specifically to Mr. Genachowski and his 'Third Way' ideals, should they succeed in gaining control over the backbone of the internet? What other related efforts might such a thing lend a helping hand to in the future?

Politico notes:

"The Federal Communications Commission Thursday suspended its weeks-long series of talks with Internet providers on Net neutrality, dealing a blow to efforts to produce a deal that the agency could take to Congress.

The decision to cut off negotiations marks a major political setback for Chairman Julius Genachowski, whose office reached out to stakeholders six weeks ago to strike an agreement and avoid a public battle over rules that would treat all users’ Web traffic equally.

But the end to industry discussions — which a source close to the FCC talks blamed entirely on news that Google and Verizon separately sought some form of net neutrality agreement — could now force the FCC to take a more aggressive approach to solidifying its broadband authority.

FCC chief of staff Edward Lazarus stressed in a briefly worded statement that the agency has no plans to back down on Net neutrality, months after a federal court in a case involving Comcast essentially nullified much of the agency’s broadband authority.

Lazarus said the agency’s round of stakeholder meetings had not “generated a robust framework to preserve the openness and freedom of the Internet.” But he added that “all options remain on the table.”
"

Now would be a good time for you to get some perspective - go ahead and glance back up at ol' Thucydides' observation about those with power telling those without it what they're gonna do and like it, and see how well you think it jibes with "...the agency has no plans to back down on Net neutrality..."... are you beginning to get a better grasp of the larger picture? They are intent on passing this with or without law, with or without constitutionality, whether or not it expands or contracts broadband distribution, and whether it increases your service and satisfaction - or not. Feeling all nice and liberty-full now? Sounds more that just a little bit like Nancy Pelosi on health care:

“We’ll go through the gate. If the gate’s closed, we’ll go over the fence. If the fence is too high, we’ll pole vault in. If that doesn’t work, we’ll parachute in but we're going to get health care reform passed for the America people."

... and no doubt we'll just need to experience it as well, before we find out what's in it. Another thing to keep in mind here, especially in regards to our upcoming elections in November: Do you remember when we got Scott Brown elected and 'killed' OamaoCare?

Remember how well that worked? Yeah. Keep that in mind. Because two years ago I was thankful that that incarnation was 'defeated', I was commenting on a speech (here on YouTube, here in text) which Bill Moyers gave about how the government should take over... er... 'support' a 'free press' and impose Rep. Markey's earlier iteration of Net Neutrality, and make no mistake, the two very definitely go together, they are both rooted in the notion that you and I are incapable of making intelligent choices, that we are mindless slaves to slick marketing and unfair (meaning low) pricing. Moyers rails in the video at 6:10 into it,

" ...organizations whose reward comes not from helping fulfill the social compact embodied in the notion of “We, the people,” but from the manufacturing of news and information as profitable consumer commodities, rather than the means to empower morally responsible citizens."

And more so at 14:59 goes on about how private advertisers having the ability to sponsor points of view which they support, and making those available for people to listen to (or not) on something like YouTube,

... "Advertisers have already aggressively seized the new online world to go back into the programming business themselves, creating what’s called branded content. Imagine the Camel News Caravan revived, but this time online as a sponsored YouTube channel!"

What you should imagine instead, are people like Moyers denying them the ability to support and promote the ideas they believe in. He asks in a contemptuous manner,

"Already, newspapers and magazines, and soon television, are encouraged to sell keywords to advertisers in the online versions of stories. Can you imagine advertisers going for stories with keywords such as “healthcare reform,” “environmental degradation,” “Iraqi casualties,” “contracting fraud” or “K Street lobbyists”? I don’t think so."

He assumes not only that I, or others, wouldn't patronize such sites, but that I shouldn't be allowed to patronize such sites or others more in line with my interests, and that he, or other chosen ones, should have the power to limit and force me to view only what he sees as worthy keywords."

Moyers and his comrades who promote 'Net Neutrality' and 'FreePress', like to denigrate anything that is a commodity - ignoring the fact that a commodity is a product which people will pay their hard earned time and money for, and use - but they've got no compunctions against forcing those same people to pay, against their will, for another commodity, theirs, which those who are forced to watch it might feel to fall somewhere between uninteresting pap, and biased propaganda - as his show was - something which in fact people weren't willing to pay for, even when it was free.

What Moyer's wanted then, and those of like mind still want today, is the ability to remove the inconvenient truth of individual's own right to choose to not be bothered with watching the shows Moyer's demands that they watch. To do so, he wants to enlist the government to skew (at best) or outright control the market, in order to make the public 'morally responsible' in his opinion, and in that of those he chooses to approve of, who he refers to as "professional journalists trained at prestigious universities ". Moyers would like to advance the principles of life, liberty and the pursuit of happiness.. by forcing people to watch what he knows is best for them, and as an ardent supporter of 'Net Neutrality', he was very enthusiastic about how it could be used to aid in 'subsidizing' a 'free press'... at the price of a free press.

At about 6:45 in to the speech he notes a story he might also have remembered from his talks with Joseph Campbell,

"... Why a media anyway? I’m going to let an old Cherokee chief answer that. I heard this story a long time ago, growing up in Choctaw County in Oklahoma before we moved to Texas, of the tribal elder who was telling his grandson about the battle the old man was waging within himself. He said, "It is between two wolves, my son. One is an evil wolf: anger, envy, sorrow, greed, self-pity, guilt, resentment, lies, false pride, superiority and ego. The other is the good wolf: joy, peace, love, hope, serenity, humility, empathy, generosity, truth, compassion and faith.” The boy took this in for a few minutes and then said to his father—to his grandfather, “Which wolf won?” The old Cherokee replied simply, “The one I feed.” Democracy is that way. The wolf that wins is the one we feed. And media provides the fodder. .."

Yes, they one you feed. Pity he didn't pay more attention to how Campbell told those tales, because their points often have Rod Serling-like twists, where the person seeking to do good, is shocked to find that he has been promoting evil instead. What a shocker, eh? In truth, the wolf Moyers and his fellows are seeking to feed, is the state, strengthening its power to control what will, and will not be, heard, in the naive notion that you can 'solve' and 'fix' other (lesser) people to believe as 'those who know better and who aren't biased' do. What Moyer's and the proregressives in general just don't grasp, is that those who claim to know what others should do, are the most fearsome tyrants of all, knowing little about their fellows and even less about themselves.

At 11:52 he laments that the Bush administration (no this isn't Obamao or Robert Gibbs speaking, remember, this is from a few years ago) is giving the 'public airwaves' to nasty, greedy, miscommunicating telecom's,

"Even as we meet, the administration is pressing to give the conglomerates more control .... to awarding some of the most valuable remaining swaths of public airwaves to two of the largest telecommunications companies..."

Now, think about it, does anyone see that happening today? Is the Obamao administration divvying up public airwaves to the big bad telecoms? No? So then... why are they still pushing for the Net Neutrality act today, if the problem it was supposedly a solution for, is not a problem today? Looks like it is still just a solution in search of a problem.

At 12:20, Moyer's goes on with connecting his utopian dreams of a government controlled free press, with a government controlled free internet,

"‘Congressmen Ed Markey has introduced a bill to advance network neutrality' Moyers is fond of invoking the specter of Orwell’s 1984 and double-speak. Please, somebody, tell me what it is that cloaks itself under the name of 'network neutrality' in order to force private companies, telecoms, etc, to provide free access to their services, and force cable companies to provide programs which the Gov’t approves of and deems necessary? Thank God it was defeated yesterday.

Here's a bit of folk wisdom that I'd be ever so grateful for Moyers and all other do gooder's to take to heart, a quote usually attributed to George Washington, which if he didn't say it, he should have,

“Government is not reason, it is not eloquence — it is force! Like fire, it is a dangerous servant and a fearful master. Never for a moment should it be left to irresponsible action.”

A fearful master indeed... and a devilishly difficult one to keep down. I was thankful when 'Net Neutrality' was defeated several years ago. But it's back. 'Defeated' to leftists is not the transparent term it might be to the rest of us, it doesn't mean defeat to leftists, it means time to rejigger the wording, and then try to sneak it, or cram it, through yet again. They very much have contempt for their opponents - you and me - and they intend to take every opportunity they have to 'do good' unto us no matter what we might say in response.

This is plainly not about crafting a policy to solve a problem, this is not about making a more 'level playing field' for businesses to compete in. This is not about bringing broadband to rural Missouri or to any other wilderness. This is about gaining power over what you will be able to see and hear, and where and when you can see and hear it, if at all. It is about control of the voices in this nation who oppose what those in power are doing.

I was thrilled when it was defeated back then, and that it was defeated yet again. And yet again, we must defeat it again, and again, and again.

A lame duck congress is coming up... and those who favor neutering the 'net are prepped and ready to be filled with resentment and looking for payback. This November 2nd it is important that you get out and vote for those who will show some respect for your rights.

But while this election is exceedingly important, it is only a start, and if we want to actually 'fix' government, it's going to be a long term project. Talk to your friends, meet your neighbors, get the word out - and make a habit of it.

If we want to avoid being neutered and escape the net that's been cast over us, we've got a lot of unweaving to do.

What you need to keep in mind, is that Net Neutrality, and every other regulatory plan, is going to be aggressively sold to you as benefiting 'the greater good', that we shouldn't allow one business or another to 'overcharge' (absent will be any mention of those who would be charged less, but that is also neither here nor there) a helpless public.

But if you can manage to wipe all that opaque transparency out of your way, the true core of the issue is that if rights, your rights, are tentative things which must yield to whatever the latest hot-button issue that a slick politician succeeds in labeling as the new 'greater good', then you really have no Property Rights, and if that is the case, then you really cannot be said to have any Rights, whatsoever.

You might say that's a wild overstatement, but those who founded this nation would have disagreed with you, and I'll make the case for it in my next post, but in the meantime let me leave it on a brief mention of two important Supreme Court decisions.

The first, "Charles River Bridge v. Warren Bridge Company" was argued as a case which highlighted the importance of Property Rights by the great lawyer Daniel Webster - which he lost. After the decision against his case, he and other prominent lawyers were heard to say that 'That's the death of property rights', or as Chancellor Kent said in The New York Review, that

"A gathering gloom is cast over the future. We seem to have sunk suddenly below the horizon, to have lost the light of the sun."

I'll give you a hint - they were not concerned about their wallets. These were men who believed that property rights formed the very foundation of a republican government and in the view of Natural Law, were the political anchors of all of our individual rights.

If you disagree with that, then you likely agree with the view that our rights have an evolving nature, and as the needs of men change over time, so then we must adjust what are seen as rights, so that 'The Law' can uphold the needs of the 'greater good'. Such was the meaning of the decision against Webster's case, as delivered by Justice Taney when he said,

"While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and wellbeing of every citizen depends on their faithful preservation."

, upholding the defense of the 'greater good' over the mere rights of individuals.

The other case I'd direct your attention to, was one that was decided some years later when that same Justice, Roger B. Taney, had become the Chief Justice of the Supreme Court, and that is the case of Dred Scott v. Sanford, where he made the argument, which men like Webster & Kent knew must come, that individual rights, all individual rights, must be secondary to the interests of the community and that of the state and the greater good - and that in such a view, slavery should be seen as a 'constitutional right' - the 'evolving nature of rights' had evolved to the point of justifying one man owning another.

If you oppose property rights, then you oppose the principle of all individual rights - Daniel Webster knew it, and so did Roger B. Taney.

Do you?

If you really want to change things, read the Constitution and discuss what it means with others, learn what our Founder's knew to be the vital nature and source of our rights, and why they must be defended in the details of property and contract. An excellent place to start is at The Founders Constitution, from the University of Chicago Press and the Liberty Fund. It goes through the Constitution, clause by clause with a collection of hyperlinks to the relevant material which the Founders had in mind during the constitutional debates on that clause, such as the Preamble. If you want to be able to meet the argument that 'Well, the 'general welfare clause' enables the government do whatever it wants to do' - that's the link to go to for your ammunition!

If this was only about 'Net Neutrality', I'd end this post here. But it's not, it is about extending the net over all that we know and knew... and it task's me... sorry, but the html has only begun to flow... Part II coming up soon.

Repeal. Reduce. Restore.

NOTE: A good post and set of resource links for learning about and battling Net Neutrality: The Right Needs to Wake up to Net Neutrality, on Gateway Pundit, by Warner Todd Huston.

Show Me State to ObamaoCare: Get Outta Town!

Show Me State vote of 71.1% for Prop C Healthcare Freedom Act says to ObamaoCare: Get Outta Town!
Missouri voters went to the polls yesterday and overwhelmingly voted for the Health Care Freedom Act, Proposition C, whose first provision says,

" 1. No law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system."

Kudo's and huge thanks to Annette Read and Margaret Hanenburg Walker of "I heard the people say" who put an enormous amount of time and effort into making this happen, a small part of which I saw first hand on several occasions, and posted on here and here.

If you may be tempted to think this is just much ado about nothing, I'll direct you to a recent comment by Congressmen Pete Stark, to a constituent during a townhall meeting (H/T Poed Patriot:)

Townhall questioner: If this legislation is constitional, what limits are there on the fed govt's limits to run our private lives?
Congressmen Stark: I think that there are very few constitution limits that would prevent the fed govt from rules that could affect your private life, now the basis for that would be how it would affect other people.
Townhall questioner: Is your answer that they can do anything?
Congressmen Stark: The fed govt, yes can do most anything in this country...

And if you've been following the comments of other fine folks like Pelosi & Hoyer, this attitude is commonly held, and even boastfully stated.

Make no mistake, when those entrusted with power feel that they have no restrictions upon the use of their power, there is little or nothting that can be done to stop them from doing unto you what they think is best for you.

If you are tempted to think that 'no legitimate public figure would do bad things to their fellow citizens'... you should also keep in that fine folks like Supreme Court Justice Oliver Wendell Holmes once ruled on forced sterilization of 'botched' citizens. Other fine folks like President Teddy Roosevelt often voiced his opinion that societies lesser elements should be bred out of 'the common stock'.

Ideas have consequences folks, and unless those with the power to act on their ideas are restricted from imposing their best ideas upon you - they will!

Preening For 'Principles' Isn't Prudent

"Should I vote for Candidate A and measure B, even though neither one is my ideal?"

Alright, this is not philosophy, it's politics. Politics is engaged in to get political measures accomplished. The 'getting accomplished' part is easily seen as a revolting part, a part which I, and most of us, would like nothing more than to distance ourselves from, but too often that sentiment is one which is taken as an easy opportunity to place ourselves upon a pedestal far above that of those lowly politicians, and as an opportunity for us to bask in the approval of our own preening gaze.

But unless you are endorsing dictatorial powers, you don't get to enforce your views upon others, no matter how 'right' you may be convinced you are, and so as a person who reveres liberty, you must work to reach agreement with those who don't see things the way you do, and that requires of you both the ability to engage in some of the give and take of compromise, as well as the ability to see when the process is demanding too much and passes beyond legitimate compromise and into the realm of violating your principles - or theirs. There most definitely are agreements that should not be made... and it's important to recognize those situations, but it can't be done with the equivalent of a bumper sticker being used in place of a principled reasoning.

This isn't an easy process and it most certainly isn't a clean and neat process, but it is the one that is required of a people who intend to be, and wish to remain, a free people.

Politics is not a static, mechanical process, it doesn't lend itself to scenarios where you can say

"In all cases, when issue 'A' occurs, respond with issue 'B', until issue 'C' results, then return to your starting point"

Sorry, no, doesn't work that way, and it doesn't work that way for the same reason that YOU don't work that way, for the same reason that YOU don't think that way, and for the same reason that YOU wouldn't put up with living that way, and that is because it would be unreasonable and inhuman.

We are (even when you might attempt to avoid it) thinking creatures, hopefully rationally thinking creatures, who have the ability to Reason and hopefully some skill in reasoning, and we must attempt to apply those skills in our lives as much as possible. Rousseau and the rest of leftist thunkers would have us think that we are merely reacting creatures, creatures whose lives, thoughts and actions are determined entirely by external events and ingrained and uncontrollable passions which it is the duty of the elite legislators to control through the use and application of political powers - and that my friend is the very basis for every leftist and statist program out there, from free lunch at school, to being provided a free living, lunch, dinner & doctor and pension at retirement.

But we are not animated pinball machines, and if we tried to live without actively thinking we'd be devoured by nature in nothing flat. And thinking is not akin to following a checklist of static do's and don'ts in a flow chart. Everything that occurs, occurs within a given context, contexts which include not only their own specific and immediate environment, but numerous factors leading up to them and surrounding them, and a varying likelihood of other factors following from them, and the never to be escaped uncertainty as to what exactly might happen next, which may well confirm, alter or blast all of your expectations to pieces.

Politics, like life, requires attention to the moment, awareness of the past, and a canny view of what's coming down the pike. What may have worked at one time, 1992 for example, is unlikely to produce the same results today, and even if they did it's highly likely that those same results in the different context of the here and now, would be entirely undesirable.

Principles give you general rules for reasoning, they tell you how to think, but they cannot tell you What to think, and to use them as if they give you particular answers, rather than as guides to discovering the best answers, is to mistake their purpose and to destroy the good results you had expected the use of them to achieve.

Principles are a vital component of reasoning, and vital to a successful, worthwhile, moral life - but they are tools to aid you in thinking, not tokens which can substitute for thought, or aid you in escaping the effort of reasoning.

John Burns, of the St. Louis Tea Party Coalition, recently put up a very good post on Gateway Pundit (get well soon Jim Hoft!), conservatives in general and those of us in the Tea Parties in particular, that we must THINK in choosing our candidates and issues, and that insisting on 100% compliance with your personal litmus tests, and of refusing to work with, or even denouncing, those who don't meet your pre-formed positions.

"Winning back the country from the grasp of Socialists is difficult work. It’s a task that will take many years and the tireless effort of countless individuals. But although this is a long-term process, winning this election is important. Because of this, we can’t get bogged down in internecine warfare, turf battles and ego clashes. And it may seem highly counter-intuitive, but for this specific election cycle where so much is on the line, we can’t forget that “perfect” ideological candidates (candidates who are “perfect” on all of our issues) aren’t always the best choice at the polls in the primaries."

But many folks out there are loudly, and boastfully, insisting on particular, litmus test approved 'perfect conservative' candidates, or else they'll take their vote, uncast, and go home, and as John points out to them, this is a suicidal idea,

"Another sure path to failure: making the perfect the enemy of the good. This election cycle is very similar to triage in an army field hospital on the battlefield. If you’ve got one man shot in the arm, another shot in the chest and only one doctor, some quick, decisive decisions must be made if both men are to survive. The doctor must attend to the chest wound first because it’s the most serious."

and it is a recipe for the defeat of every value these people claim to hold dear. Jim Durbin also posted on the subject, as did Bill Hennessy, who had an excellent observation,

"On November 2, I will follow the advice of the wisest man I every met, William F. Buckley Jr. Buckley’s rule for picking a candidate was simple: “Always support the rightward-most, viable candidate.”"

These posts brought out comments there, and throughout facebook & related sites about these people being moderates and RINO's. Pause and just let that sink in for effect, John Burns, Dana Loesch, Jim Durbin & Bill Hennessy as moderate RINO's... if you know anything about any of them and that doesn't make you laugh at ROFLOL strength, you're funny bone has quite possibly become cancerous.

What's worse, and more to the point, is they, and those who supported their positions, Dana Loesch for one (and yep, me too, just your average moderate RINO - SNORT!), are being used as opportunities by their critics to make these grand sounding statements,

"I won't vote for anyone who's less than 100% conservative! That's how we lose our movement! same old b.s. that the Republicans must be moderate and compromising with the Dems which by the way is what lost the congress to the dems in the first place..." and my personal favorite "... this negative ‘do it for the good of the party’ lecturing is starting to sound an awful lot like another frequently echoed mantra..“Everyone Must Sacrifice For the Greater Good”... or "You guys all have it backwards. And I can't tell why you are doing it. Bad strategy or strategy. Rinos confuse me..."

These statements are made while puffing their feathers out, as if they've just made an admirable declaration of Conservative Principles, then they preen a moment and bask in their own pure glow, and then sneer at anyone who questions the wisdom of what they're saying as being moderates and RINO's.

What's blatantly on display here, and symptomatic of the very issue they think to criticize, is an absence of context and inability to reason with prudence. Context has been an item in the news lately, as a result of Breitebart's NAACP video, and it's often noted now that when you drop the context - either from the narrow particulars of the issue involved, as was partially done in regards to Sherrod (the joke is that within the full text of her speech, the was much said that was far worse than the feeble implications of her 'turning point story'), or from the real point of Breitbart's video, not the narrow focus upon Sherrod herself, but the approving responses of the NAACP crowd attending to her speech.

Context must be taken into context
Even Context must be taken into context - or else you risk dropping it altogether!

So, lets look for the context that these faux-principled preeners are dropping. Let me give an example of similar statements and actions that were given, properly, in a very different context, when I, and many others, did and said seemingly the exact thing these folks are advocating, but which in that context, was a proper, well reasoned position to take.

In '92 we still had a relatively rational world (in comparison to that of today), the communists were openly in the governments the USSR, not the USA, etc, and so when Bush 41 broke his "Read my lips: no new taxes!" pledge, I and many others, refused to vote for him or his RINO supporters in the next election. As a result, Bush lost, and a large number of RINO's were purged from congress.

Because we did, a newly galvanized conservative base insisted upon, and very soon got, the "Contract With America" and the 'Republican Revolution', which among many other things, shut down welfare, HillaryCare and in general managed to stave off the proregressive socialistic assault for almost 20 years.

There was, however, a counter balance to that surge of course, in consequence of it we also got 8 yrs of Clinton, and I don't think most people realize how damaging it was, legislatively and morally, to the nation and to our understanding of who we are - but even so, on balance, much was accomplished which I don't think could have even have been hoped for, if Bush 41 had won the election, rather than Clinton.

The point is, that you've got to look at the full wide-angle lens picture and realize that it is highly unlikely that you'll ever get the luxury of having a clear choice between Good and Bad situations or perfect and botched candidates; far more often than not we are presented with a situation where we only have the choices of 'not so good', 'worse' and 'much worse', and we must make the effort to realize that that situation doesn't exist in a vacuum, separated from the rest of the world, we have to remember to evaluate not only the immediate goal, but the lesser and later implications of that situation as well, which will soon, in all probability, come to the fore and become the primary issues to be dealt with.

In '92, it was a reasonable risk to allow the Presidency to be lost, in order to galvanize the like minded and make a strategic gain in the mid-term elections. Clinton, foul as he was, was a Democrat, not a full blown proregressive leftist, and we were also not faced with a full democratic congress and president whose leadership and advisory teams are openly admiring of socialistic, and even communist, leaders and 'principles', armed to the teeth against us with new thousands of pages of (unread) legislation in place which, if not repealed, could conceivable mean that our remaining constitutional liberties will be lost... for a very long time.

Then And Now
But as well as that earlier strategy played out (there was far more than Welfare that was stopped in the following years Gingrich years, it's worth going back and looking at what the 'Contract With America' accomplished not only legislatively, but in the rules which congress and it's committees operate by), it would be foolish to forget that we also lost important ground (literally in some cases, Utah lost millions of acres of statehood to the Fed Govt, because of Clinton's actions), due to our principled stand then.

The gamble was that for the loss of short term gains, we'd make some more valuable long term gains, and that given the then current climate and foreseeable future from the vantage point of 1992, it was worth the gamble, and on balance I think it did prove worthwhile.

In 2000 I did not vote for Bush 43 in the primaries, it was obvious to me that he was what he proved to be, a moderate, and in some areas a progressive leaning candidate, I feared he'd be a disastrous choice (and his Medicare Prescription bill, Amnesty, and disastrous bailout approving measures bore me out), but come the election, between him and the greenie meanie algore... good God, there was no choice whatsoever.

2004 was another year of a same issue, but between the moderate progressive Bush, and the vacuous leftie Kerry (can you imagine if John Edwards had been even close to having power?!), I simply could not sit that one out.

2008, again, the exact same issue came around, but this time deciding to 'stand on principle' was a suicidal venture. I personally had many times over stated that I would never vote for the proregressive, little 'r' republican McCain, that Teddy Roosevelt progressive in conservatives clothing... but in the context of choosing between McCain, and Obamao, it would have been, and I think has proved to be, suicidal to have chosen to sit out the election, rather than forcing yourself to swallow hard, hold the nose, and vote for McCain.

Because so many so-called 'conservatives' took their bumper-sticker 'principled' stand - without consideration for the full context of the issues and realities involved ... they literally left us to our present fate.

In the climate of 1992, it made sense to stand on principle and sit out the election or to vote for a 3rd party, but that was not the situation in 2008, and it is most certainly not our climate today.

And it is also important to note that the bumper-sticker faux principled stand was NOT the right stand to take in 1992, taking it only happened to not produce a wrong result - that is a far cry from being the right thing to do. It's akin to saying that putting on a blindfold, spinning yourself around and then 'choosing' between a glass of arsenic and a glass of wine - if you happened to select the wine... it's lucky you didn't pick the wrong glass, but I'd hardly call that a correct Choice!

The context, and the method of reasoning you use in making your choice, is as important as the actual choice that is made.

We simply cannot afford to sacrifice a broad midterm election today (though there may still be some isolated instances where it might make sense to, the earlier NY 92 with the Scozzafava scenario comes to mind), in order to make a point for a future election - that is a myopic, and IMHO, a foolish, meaningless, effort, made more with your own puffed up self regard in mind, rather than the real good of the nation. For the same reasons, it was a wise move to campaign in that NY 92, even though whatshisname lost, AND it was right to do so for Scott Brown earlier this year (and really, anyone who didn't realize he was a RINO, and that he would perform just as he has, wasn't paying attention - but in the context of that election and the looming healthcontrol vote, it was clearly the better choice, in Massachusetts, between a poor candidate and a worse one), for those very same reasons, it is a wise move today to look less at the blustery (and self defeating) faux 'statement of principle', and look at the wider context and Prudent, choice.

As Bill Hennessy noted above,
"Always support the rightward-most, viable candidate..."
, any candidate, and believe me, it galls me to say it, but ANY candidate today, that is less left than the leftist candidate, is worth your voting for, and is worth your making an effort to get others to vote for them as well.

BUT!
DO NOT LOSE SIGHT OF THE WIDER CONTEXT AND LONGER RANGE GOAL!

Because it is wiser to hold our nose and vote, and to work for, a lesser quality candidate now, DOES NOT mean that we stop or pull back in our efforts to lay the ground work for the more perfect candidate in future elections. It does not mean that we accept, as a matter of course the idea that we have to 'Go along to get along', or that we (choking back vomit) "Must be more bipartisan". It does not mean that we stop letting those in the various legislatures and levels of political machinery know that we are STILL GODDAMN PISSED OFF and are coming for them, that their moderate RINO butts are being targeted, and when the ammo is available, they will be fired - when it benefits US, our real Rights, and the interests of the Nation, to do so.

Our modern system of education has nearly eradicated all knowledge and comprehension of the virtue of Prudence - I'd suggest that we all pull out our Aristotle ('Practical Wisdom' is how it's often translated in Aristotle) and Aquinas and study it well - make no mistake, without it, the Republic will be lost (and BTW, Prudence held big time sway with the Founding Father's generation... go ahead... have a look at what they had to say) - it doesn't mean the finger wagging, temporizing of Dana Carvey's Bush 41 "wouldn't be pruuudent!", it is a vital Virtue, perhaps most important of the Cardinal Virtues, and absolutely key to the process of reasoning.

Bumper-Sticker 'Principles' Simply Wouldn't Be Prudent
In reality, the faux principled stand, is just another instance of top down thinking, more suitable to proregressivism, than to what we typically call conservatism, or more correctly, Classical Liberalism. Principles are tools of thinking, not mindless statements to help you escape the effort of thought.

Making a supposed stand for 'Principle', in the absence of the wider context, divorces that stand from any claim to Principle. Principles are not some fixed statements, Kantian imperative that can be applied in any and every context without thought - to do so is just an excuse to avoid thinking - and insisting that they be taken as such has been a tool of the left to destroy the very idea of being principled! As I noted a couple years back,

"...Kant then enforces his fantasy worlds through the Categorical Imperative, which is supposed to be a statement of ethical conduct that will be true in all situations – regardless of context. This is a typical example of what comes from Elites who not only distrust peoples ability to act morally, but fear their ability to judge for themselves. Typical of Listicism (the attempt to substitute “To-Do Lists” for active thought), is it's intent to make thought unnecessary and judgment replaced.

It is interesting to note that his own categorical imperative “Never Lie” is in direct opposition to “I have found it necessary to deny knowledge, in order to make room for faith.” – or do you think such categorical statements allow for little white lies of omission? Nah.."

To be Principled, requires a clear awareness of the facts involved, and as much as is possible (and wise), the facts which make those facts possible - or in other words, the Context, and then carefully reasoning with that principle, and actively applying the principle to the full context of the issue, in order to come up with a prudent, principled, response. Any claim to being principled, that isn't also Prudent and integrated into the full context of the decision, is NOT a principled action, just a shallow aping of principle.

In 1992, given the full context of the times, it was a principled stand to vote against Bush 41, and because many of us did so, we got the Contract with America, and set the socialist agenda back almost 20 years.

Today is nothing like 1992, it would be a betrayal of principle, and of the Republic, to sit this election out, or any of the foreseeable elections, because the available candidate (or 'rival' Tea Party group) doesn't meet a perfect 'principled' litmus test.

If we're going to prevail, we're going to have to think, and that means going beyond a bumper sticker grasp of the principles this nation was founded upon. If you trully want to stand for Principle, and see those principles followed by others, you'd damned well better be out there beating the bushes to get your message across and understood - and I don't mean just at election time - elections come at the end of the political process. Do so now, and next month, and next year, especially if you know that your views are in the minority. To simply stand in the way, shouting 'Stop!", chest puffed up, and congratulating yourself on 'standing for principle!' is foolish at best, and such posturing for 'principles' displays no comprehension of what they mean or entail.

I do understand the sentiment of the preeners, I don't like the moderates and RINO's, or those who seem to propose compromise as a valued end, rather than a, at times, grudgingly necessary means. For instance, I'm not a fan of Newt Gingrich as a candidate, because he is, it seems to me, oriented around Gov't being a useful tool to solve problems, rather than what it should in any active sense be, a dangerous tool used to defuse specific obstacles to the exercise of individual rights, protecting property rights and securing the Rule of Law. Newt, for instance, would happily involve govt in the system of healthcare, involve it is putting govt initative's behind efforts to modernize the healthcare system and developing electronic records standards - good God! (Anyone out there ever been involved in any Gov't electronic 'standards'? Ever try to decipher HIPAA standards for use in a large IT System?!) But he is obviously an intelligent man, has done much for this nation, and if he were to win the primaries, and if the climate is anything like today, I might find myself in a position again where I'd need to hold my nose, as I did for McCain, and vote for him... but given a different climate, one more like 1992 for instance, I'd eagerly send him packing pronto.

The context matters, context is King, and to forget that is to hamstring your mind, and far from 'standing for Principles and Freedom!', you're far more likely to bring about a hyper pragmatic tyranny.

In short: Think first, then "... support the rightward-most, viable candidate.”"

A Defence of Liberty for the Fourth of July

I’m only half way through Justice Clarence Thomas’s concuring opinion in the recent 2nd amendment case "M c DONALD et al. v . CITY OF CHICAGO, ILLINOIS", but from what I’ve read so far, it’s an excellent defense of the Constitution itself, and our ability to understand and apply it. I thought that since it formulates a defense of our 2nd Amendments rights, it’s particularly well suited for consideration on this day, the Fourth of July, when the people of the United States of America first declared their independence from the control of tyrants.

Truth be told, I also didn't mind that he makes mention of he importance of the Slaughter-Houses cases, and Lochner v New York, which I cited here, regarding their importance in diminishing the understanding of our rights and distancing us from being able to count on a sound constitutional defense for our liberties.

Once again Thomas shows himself to be a far better judicial mind than either of the more renowned (and timid) 'originalists' Scalia, Roberts or Alito, are.

Justice Thomas is the only one who ventures to state what it seems that the other conservative Justices suspect to be true, but aren't willing or able to support, that the sleight of hand that has with over a hundred years of creaking precedent, attached to the magical 'due process' clause, along with willfully anemic interpretations of the 'Privileges and Immunities' clause of the 14th amendment, are simply excuses for rationalizing desired pet results out of the constitution, while it is the full understanding of the Privileges and Immunities clause, that is the only proper conduit for the Federal Bill of Rights to be applied down to and within the individual states, and is the only method which won't also lead to an erosion of the powers of the states.

With his practice of reviewing and citing actual historical understanding (rather than just statements and actions) and the facts as they were known at the time, he slams home over and over again, that the proper basis for someone to gain an understanding of the Constitution, is through an understanding of the philosophy of Natural Law, as the Classical Liberal Founding Fathers did, and it is folly to presume that someone will be able to properly defend it and apply its timeless principles, without such an understanding. For instance,

“...It cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison , 1 Cranch 137, 174 (1803) (Marshall, C. J.). Because the Court’s Privileges or Immunities Clause precedents have presumed just that, I set them aside for the moment and begin with the text.

The Privileges or Immunities Clause of the Fourteenth Amendment declares that “[n]o State . . . shall abridge the privileges or immunities of citizens of the United States.” In interpreting this language, it is important to recall that constitutional provisions are “ ‘written to be understood by the voters.’ ” Heller , 554 U. S., at ___ (slip op., at 3) (quoting United States v. Sprague , 282 U. S. 716, 731 (1931) ). Thus, the objective of this inquiry is to discern what “ordinary citizens” at the time of ratification would have understood the Privileges or Immunities Clause to mean. 554 U. S., at ___ (slip op., at 3).

A

1

At the time of Reconstruction, the terms “privileges” and “immunities” had an established meaning as synonyms for “rights.” The two words, standing alone or paired together, were used interchangeably with the words “rights,” “liberties,” and “freedoms,” and had been since the time of Blackstone. See 1 W. Blackstone, Commentaries *129 (describing the “rights and liberties” of Englishmen as “private immunities” and “civil privileges”). A number of antebellum judicial decisions used the terms in this manner.

See, e.g. , Magill v. Brown , 16 F. Cas. 408, 428 (No. 8,952) (CC ED Pa. 1833) (Baldwin, J.) (“The words ‘privileges and immunities’ relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places”). In addition, dictionary definitions confirm that the public shared this understanding. See, e.g. , N. Webster, An American Dictionary of the English Language 1039 (C. Goodrich & N. Porter rev. 1865) (defining “privilege” as “a right or immunity not enjoyed by others or by all” and listing among its synonyms the words “immunity,” “franchise,” “right,” and “liberty”); id. , at 661 (defining “immunity” as “[f]reedom from an obligation” or “particular privilege”); id. , at 1140 (defining “right” as “[p]rivilege or immunity granted by authority”). 2

The fact that a particular interest was designated as a “privilege” or “immunity,” rather than a “right,” “liberty,” or “freedom,” revealed little about its substance. Blackstone, for example, used the terms “privileges” and “immunities” to describe both the inalienable rights of individuals and the positive-law rights of corporations. See 1 Commentaries, at *129 (describing “private immunities” as a “ residuum of natural liberty,” and “civil privileges” as those “which society has engaged to provide, in lieu of the natural liberties so given up by individuals” (footnote omitted)); id. , at *468 (stating that a corporate charter enables a corporation to “establish rules and orders” that serve as “the privileges and immunities . . . of the corporation”). Writers in this country at the time of Reconstruction followed a similar practice. See, e.g. , Racine & Mississippi R. Co. v. Farmers’ Loan & Trust Co. , 49 Ill. 331, 334 (1868) (describing agreement between two railroad companies in which they agreed “ ‘to fully merge and consolidate the[ir] capital stock, powers, privileges, immunities and franchises’ ”); Hathorn v. Calef , 53 Me. 471, 483–484 (1866) (concluding that a statute did not “modify any power, privileges, or immunity, pertaining to the franchise of any corporation”). The nature of a privilege or immunity thus varied depending on the person, group, or entity to whom those rights were assigned. See Lash, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, 98 Geo. L. J. 1241, 1256–1257 (2010) (surveying antebellum usages of these terms).
2

The group of rights-bearers to whom the Privileges or Immunities Clause applies is, of course, “citizens.” By the time of Reconstruction, it had long been established that both the States and the Federal Government existed to preserve their citizens’ inalienable rights, and that these rights were considered “privileges” or “immunities” of citizenship.

This tradition begins with our country’s English roots. Parliament declared the basic liberties of English citizens in a series of documents ranging from the Magna Carta to the Petition of Right and the English Bill of Rights. See 1 B. Schwartz, The Bill of Rights: A Documentary History 8–16, 19–21, 41–46 (1971) (hereinafter Schwartz). ”

That fact is on clear display by the more doctrinaire 'originalists' who are continually left flatfooted and still trying to prime their time machine of original intent asking WWFD (What Would the Founders Do?!), instead of ‘What does this concept mean?’. Thomas doesn't bother with transparent claims of having divined the Founding Father's 'original intent', and he isn't diverted by narrowly selected phrases whose meanings are then used as tools of equivocation - by both sides of the aisle - instead he goes back to original sources, not to show how they had felt about similar situations, but to show what concepts were understood to apply to the phrases, and the context they were used within, which also shows the patently empty nature of the commonly 'understood' meanings of those phrases. Here's a good example of that in action, picking up where he's looking at the earlier meaning of the Bill of Rights applying to Federal legislation, and not to the states (in this case also a 2nd amendment issue),

"... As the Court explains, if this case were litigated before the Fourteenth Amendment ’s adoption in 1868, the answer to that question would be simple. In Barron ex rel. Tiernan v. Mayor of Baltimore , 7 Pet. 243 (1833), this Court held that the Bill of Rights applied only to the Federal Government. Writing for the Court, Chief Justice Marshall recalled that the founding generation added the first eight Amendments to the Constitution in response to Antifederalist concerns regarding the extent of federal—not state—power, and held that if “the framers of these amendments [had] intended them to be limitations on the powers of the state governments,” “they would have declared this purpose in plain and intelligible language.” Id. , at 250. Finding no such language in the Bill, Chief Justice Marshall held that it did not in any way restrict state authority. Id. , at 248–250; see Lessee of Livingston v. Moore , 7 Pet. 469, 551–552 (1833) (reaffirming Barron ’s holding); Permoli v. Municipality No. 1 of New Orleans , 3 How. 589, 609–610 (1845) (same).

Nearly three decades after Barron , the Nation was splintered by a civil war fought principally over the question of slavery. As was evident to many throughout our Nation’s early history, slavery, and the measures designed to protect it, were irreconcilable with the principles of equality, government by consent, and inalienable rights proclaimed by the Declaration of Independence and embedded in our constitutional structure. See, e.g. , 3 Records of the Federal Convention of 1787, p. 212 (M. Farrand ed. 1911) (remarks of Luther Martin) (“[S]lavery is inconsistent with the genius of republicanism, and has a tendency to destroy those principles on which it is supported, as it lessens the sense of the equal rights of mankind” (emphasis deleted)); A. Lincoln, Speech at Peoria, Ill. (Oct. 16, 1854), reprinted in 2 The Collected Works of Abraham Lincoln 266 (R. Basler ed. 1953) (“[N]o man is good enough to govern another man, without that other’s consent . I say this is the leading principle—the sheet anchor of American republicanism. . . . Now the relation of masters and slaves is, pro tanto , a total violation of this principle”).

After the war, a series of constitutional amendments were adopted to repair the Nation from the damage slavery had caused. The provision at issue here, §1 of the Fourteenth Amendment , significantly altered our system of government. The first sentence of that section provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This unambiguously overruled this Court’s contrary holding in Dred Scott v. Sandford , 19 How. 393 (1857), that the Constitution did not recognize black Americans as citizens of the United States or their own State. Id. , at 405–406.

The meaning of §1’s next sentence has divided this Court for many years. That sentence begins with the command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” On its face, this appears to grant the persons just made United States citizens a certain collection of rights— i.e. , privileges or immunities—attributable to that status.

This Court’s precedents accept that point, but define the relevant collection of rights quite narrowly. In the Slaughter-House Cases , 16 Wall. 36 (1873), decided just five years after the Fourteenth Amendment ’s adoption, the Court interpreted this text, now known as the Privileges or Immunities Clause, for the first time. In a closely divided decision, the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship, and held that the Privileges or Immunities Clause protected only the latter category of rights from state abridgment. Id. , at 78. The Court defined that category to include only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id. , at 79. This arguably left open the possibility that certain individual rights enumerated in the Constitution could be considered privileges or immunities of federal citizenship. See ibid. (listing “[t]he right to peaceably assemble” and “the privilege of the writ of habeas corpus ” as rights potentially protected by the Privileges or Immunities Clause). But the Court soon rejected that proposition, interpreting the Privileges or Immunities Clause even more narrowly in its later cases.

Chief among those cases is United States v. Cruikshank , 92 U. S. 542 (1876) . There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id. , at 553. In other words, the reason the Framers codified the right to bear arms in the Second Amendment —its nature as an inalienable right that pre-existed the Constitution’s adoption—was the very reason citizens could not enforce it against States through the Fourteenth.

That circular reasoning effectively has been the Court’s last word on the Privileges or Immunities Clause. 1 In the intervening years, the Court has held that the Clause prevents state abridgment of only a handful of rights, such as the right to travel, see Saenz v. Roe , 526 U. S. 489, 503 (1999) , that are not readily described as essential to liberty.

As a consequence of this Court’s marginalization of the Clause, litigants seeking federal protection of fundamental rights turned to the remainder of §1 in search of an alternative fount of such rights. They found one in a most curious place—that section’s command that every State guarantee “due process” to any person before depriving him of “life, liberty, or property.” At first, litigants argued that this Due Process Clause “incorporated” certain procedural rights codified in the Bill of Rights against the States. The Court generally rejected those claims, however, on the theory that the rights in question were not sufficiently “fundamental” to warrant such treatment. See, e.g. , Hurtado v. California , 110 U. S. 516 (1884) (grand jury indictment requirement); Maxwell v. Dow , 176 U. S. 581 (1900) (12-person jury requirement); Twining v. New Jersey , 211 U. S. 78 (1908) (privilege against self-incrimination).

That changed with time. The Court came to conclude that certain Bill of Rights guarantees were sufficiently fundamental to fall within §1’s guarantee of “due process.” These included not only procedural protections listed in the first eight Amendments, see, e.g. , Benton v. Maryland , 395 U. S. 784 (1969) (protection against double jeopardy), but substantive rights as well, see, e.g. , Gitlow v. New York , 268 U. S. 652, 666 (1925) (right to free speech); Near v. Minnesota ex rel. Olson , 283 U. S. 697, 707 (1931) (same). In the process of incorporating these rights against the States, the Court often applied them differently against the States than against the Federal Government on the theory that only those “fundamental” aspects of the right required Due Process Clause protection. See, e.g. , Betts v. Brady , 316 U. S. 455, 473 (1942) (holding that the Sixth Amendment required the appointment of counsel in all federal criminal cases in which the defendant was unable to retain an attorney, but that the Due Process Clause required appointment of counsel in state criminal cases only where “want of counsel . . . result[ed] in a conviction lacking in . . . fundamental fairness”). In more recent years, this Court has “abandoned the notion” that the guarantees in the Bill of Rights apply differently when incorporated against the States than they do when applied to the Federal Government. Ante , at 17–18 (opinion of the Court) (internal quotation marks omitted). But our cases continue to adhere to the view that a right is incorporated through the Due Process Clause only if it is sufficiently “fundamental,” ante , at 37, 42–44 (plurality opinion)—a term the Court has long struggled to define.

While this Court has at times concluded that a right gains “fundamental” status only if it is essential to the American “scheme of ordered liberty” or “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante , at 19 (plurality opinion) (quoting Glucksberg , 521 U. S., at 721), the Court has just as often held that a right warrants Due Process Clause protection if it satisfies a far less measurable range of criteria, see Lawrence v. Texas , 539 U. S. 558, 562 (2003) (concluding that the Due Process Clause protects “liberty of the person both in its spatial and in its more transcendent dimensions”). Using the latter approach, the Court has determined that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights. See, e.g. , Lochner v. New York , 198 U. S. 45 (1905) ; Roe v. Wade , 410 U. S. 113 (1973) ; Lawrence , supra .

All of this is a legal fiction. The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, post , at 14 ( STEVENS, J., dissenting); see post , at 6–8 ( BREYER, J., dissenting), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante , at 33–41. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.

To be sure, the plurality’s effort to cabin the exercise of judicial discretion under the Due Process Clause by focusing its inquiry on those rights deeply rooted in American history and tradition invites less opportunity for abuse than the alternatives. See post , at 7 ( BREYER, J., dissenting) (arguing that rights should be incorporated against the States through the Due Process Clause if they are “well-suited to the carrying out of . . . constitutional promises”); post , at 22 (STEVENS, J., dissenting) (warning that there is no “all-purpose, top-down, totalizing theory of ‘liberty’ ” protected by the Due Process Clause). But any serious argument over the scope of the Due Process Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does.

I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833, 963 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part). It is not “an inexorable command.” Lawrence , supra , at 577. Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.

If you are concerned with the status of the Constitution, and of how to defend it and our rights, Justice Thomas's opinion is one that is well worth your time to read.

Hope you all enjoyed a Happy Fourth of July!

Elena Kagan: Redistribution of Speech - Spreading the Silence Around

We've seen (heard) the video's of her arguing before the SCOTUS for a law that would effectively allow the banning of books (if not, see below), but not to worry, they wouldn't actually do it (!), but this one may be worse, because it was her idea which she wrote and published, and presumably believes in. She wrote a wackademic article in the '90's, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” (that title alone gives me the Orwellian creeps, some highlights from it are here), that introduced some new 'figures of speech' which ought to scare the bejeezus out of everyone, Left, Right and Center, including my favorite,

"redistribution of speech opportunities."

She doesn't make the mistake of actually advocating such a thing, she merely 'raises consciousness' regarding the issue (which she introduced) - typical wackademic passive voice tactics.

The rationale for it is that 'loud voices shouldn't be allowed to drown out other viewpoints' - which is all the license any enterprising regulator worth their salt should need to spread the silence around. Why would they? Because they are in the business of Power - growing, tending and harvesting power - that is what they do, and this new concept would produce a banner crop of power berries, let me tell you.

Couple this paper, with her argument before the SCOTUS, the gist of which is here between :16 & 2:41on the video,

Kagan: The gov't view is that although 441b does cover full length books, that there would be a quite good as applied challenge applied to any attempt to apply 441b in that context, and I should say that the FCC has Never applied 441b in that context, so for 60 years a book has Never been an issue.
Scalia: "What about the overbreadth doctrine?... If it's overbroad, it's invalid, what happened to that?"
Kagan: I don't think that it would be substantially overbroad justice scalia if I tell you that the FEC has never applied this statute to a book, to say that it doesn't apply to books is to take off essentially nothing.
Roberts: We don't put our first amendment rights in the hands of FEC bureaucrats. ...
Kagan: There has never been an enforcement action for books, nobody has ever suggested, nobody in congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that it would be a good as applied challenge with respect to that.
Scalia: So, you're a lawyer, advising somebody who is about to come out with a book and you say don't worry, the FEC has never tried to send somebody to prison for this, this statute covers it, but don't worry, the FEC has never done it. Is that going to comfort your client? I don't think so."

If you can't see the writing on the wall... it may be because you're ability to comprehend it has already been redistributed. And for those of you wanting to give her 'a fair shake', sorry, but I've already been shook.