Censorship, blasphemy and hate speech

Lately my time has been spent far more in reading blogs than writing for this one. There is a piece I've been working on that is a rewrite of a four-part series I did a couple years ago, but that work has been slow. Recently the work was put aside altogether as I started following the news on the Muslim front reporting the insanity transpiring over a really poorly produced movie trailer. This is a pot and kettle scenario illustrating well the stupidity of religious fanaticism. 

It prompted me to get started writing a tirade condemning the overreaction and the resulting call to ban speech that is "hurtful" to one religion or another. They call it blasphemy, or hate speech... whatever... I just call it stupid and was going to write a piece on the futility of such laws... but then something else caught my attention... a brewing First Amendment separation controversy in my own home state. 

In the small East Texas town of Kountze they love them some high-school football... and they love them some Jesus too. All of this is well and fine, at least until you start mixing those two up, which in Kountze they've been doing for a very long time. Nothing really unusual in this. Similar stuff happens daily in small towns across the South. For the most part the Christians get away with it simply due to strength in numbers. 

But even in the heavily religious South every now and then someone takes offense at having Jesus served up on the taxpayer's tab... but only recently has anyone done anything about it. Non-Christians in areas where they are outnumbered 12 or 15 to one historically have held their tongue. Saying anything inevitably led to shunning by family and friends alike. But in this day, there are organizations offering to step in and keep the complainant anonymous. The Freedom From Religion Foundation is making their presence known in Texas.

This past Christmas a couple of local non-believers decided they wanted to not have their county government endorse Christianity by allowing only Christian displays on the courthouse lawn. That fight continues today with the FFRF in one corner and the Liberty Institute in the other. 

In Kountze the fight got started when an anonymous young atheist wrote a letter to the Freedom From Religion Foundation. One thing led to another and now the Texas Attorney General is sticking his nose into it... vowing to vacate the Separation Clause by any means possible. So now we have not just the Christians flailing their arms in the air claiming that their freedom to cram their beliefs down throats is being violated, but we have every taxpayer in the state being forced to foot the bill for an elected official to tilt at the same windmill.

I was going to write about all of this, but the muse, it seems, is out to lunch... and everyone else has beaten me to it anyway... so instead I've been reading what everyone else is writing. 

All of the above babbling is leading up to something... I promise. This post has a purpose... it is an endorsement of one of my favorite law blogs... Popehat... and for a fellow by the name of Ken White. Ken writes some really fine prose, but on Popehat he is relatively anonymous. He got outed some time back so I'm not actually revealing a big secret, and I was happy to learn something about the real person who has authored some really fine ass-chappings. 

Where my muse has been on strike, Ken's most certainly has not. Today he pens a doozy that eloquently and succinctly surmises the state of affairs when we attempt to use the power of government to outlaw speech. Ken accomplishes this by using such poignant, technical legalese and jargon as "censorious twatwafflery" and some other fine zingers.

Please read Ken's piece. You won't regret it.

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Religious wingnut supports rewriting history

This is what is running for the Texas State Board of Education.

 

The social studies curriculum this loon supports with her own alternate version of history was roundly criticized even by the conservative Thomas B. Fordham Institute. The religious wingnuts are staging a hostile takeover of Texas public schools with the intent of indoctrinating the children with their false history and religious myths.

In a state where (1) a large percentage of rural, voting age citizens shun education in favor of just accepting what they are told, and (2) 51% identify themselves as "very conservative", and (3) straight party ticket voting is allowed, reason and intellectualism may well be driven somewhere north of the Red River.

I miss Ann Richards and Moly Ivins.

H/T

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Contest

How many lies, distortions of the truth and points of outright hypocrisy can you count in this article?

WARNING: You'll need to take your shoes off... and then some.

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Verbatim

Should It Matter What Powers Congress Invokes?

Wednesday, July 06, 2011

By Mike Dorf

Judge Sutton's concurrence in last week's 6th Circuit ruling upholding the individual mandate of the Affordable Care Act is so effective because, more than any academic or judicial writing concluding that the mandate is constitutional, Sutton's analysis credits the claimants as raising a real objection. He feels the full force of the argument for an activity/inactivity line but finds the argument lacking nonetheless. His reasoning will have credibility with conservatives on the Supreme Court--even though he couches his conclusion with qualifiers about his limited role as a circuit judge.

That said, I do want to take issue with one smallish point Judge Sutton makes en route to his final conclusion. In addition to voting to uphold the mandate under the Commerce Clause, he writes separately to explain why he thinks that it cannot be sustained as an exercise of the power to tax. Congress could have structured a mandate as a tax, but here it did not, Judge Sutton concludes. One factor he cites en route to that conclusion is the fact that Congress, in the Act, invoked the Commerce power but not the Taxation power. It's not clear how much weight Judge Sutton gives this factor, but I think it ought to be given no weight.

We could have had a jurisprudence in which, in order for a law to be a valid exercise of some power of Congress, the law would have to include a provision stating that Congress is exercising that power. But in fact we have no such jurisprudence. Let me give three examples, starting with the Uber-Case on enumerated powers.

(1) I start with McCulloch v. Maryland, in which Chief Justice John Marshall upholds the power of Congress to charter the Second Bank of the United States by invoking what he calls the "great powers," including:

to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and; to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government. 

Now notice that the Act of Congress creating the Second Bank does not invoke any affirmative powers. To be sure, the Second Bank was modeled on the First Bank, and the Congressional Charter of the First Bank did list reasons for granting the charter that can be tied to the powers that Marshall invoked in McCulloch. The First Bank charter recites that having a bank will be:

very conducive to the successful conducting of the national finances; will tend to give facility to the obtaining of loans for the use of the government, in sudden emergencies; and will be productive of considerable advantages to trade and industry in general . . . .

But even if we can map the First Bank charter's reasons onto the powers Marshall invoked in McCulloch, there is nothing whatsoever in the McCulloch opinion to indicate that Marshall thought formal invocation of a power by Congress was a prerequisite for sustaining an Act of Congress as falling within that power.

(2) The point is even more arresting in a much more recent case, Gonzales v. O Centro Espirita, in which the Supreme Court unanimously applied the Religious Freedom Restoration Act (RFRA) to the federal government less than a decade after having held that RFRA was invalid as applied to the states. What power did Congress exercise in passing RFRA as applicable to the federal government? The short answer, as Sarah Palin might say, is "you know, all of 'em."  That is, because RFRA requires certain religious exceptions to federal statutes, the authority for RFRA (as applied to the federal government) is whatever power justifies whatever  statute is yielding to RFRA in any particular case. Did Congress mention all of its powers in RFRA?  Certainly not. Yet that didn't bother the Court in O Centro one bit.

(3) To be sure, in O Centro the Court assumed but did not directly decide the constitutionality of RFRA as applied to the federal government. So consider last year's decision in United States v. Comstock, upholding a federal statute authorizing civil detention of certain federal prisoners after they have completed their sentences. The Court found the law necessary and proper to running its prisons, which in turn is necessary and proper to enforcing the criminal law, which in turn is necessary and proper to effectuating the powers that Congress exercised in enacting those criminal laws in the first place--like the power to create a Post Office (in the case of mail fraud), the power to regulate interstate commerce (in the case of bank robbery), and the power to establish intellectual property (in the case of criminal IP piracy).  Did the civil commitment statute in Comstock list "all of em" in a section of the law listing the powers Congress was exercising? Nope.  The statute didn't list any powers. Did the Court nonetheless uphold the Act? You betcha.

Thus, I think Judge Sutton is wrong to the extent that he suggests (and he only barely suggests) that Congress must invoke a power in order for that power to be available to sustain an Act. Perhaps if Congress specifically disclaims a power in the Act, then it cannot later come back and defend the Act in Court on the basis of that power, but if there is such a rule, I don't think the Court has clearly articulated it. (The closest the Court has come to doing so is in the somewhat different context of rational basis scrutiny of state laws, in the Nordlinger v. Hahn case, where the Court said that a legislative ruling out of a possible purpose for a law makes that purpose unavailable in future litigation.) In any event, despite language making clear that Congress did not want to call the penalties under the ACA a "tax," the ACA does not clearly disclaim the taxing power as a basis for sustaining it.

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The author, Michael C. Dorf holds the Robert S. Stevens Professor of Law at Cornell University School of Law,
Ithaca, NY. The blog Dorf on Law is a regular read.

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It really is possible to be polite

Local rags are all going online... something for which I am a bit sad. I hate to see the print paper going down the tubes, but it appears to be in the cards so who am I to lament their fate?

One part of the online paper that can be good or bad is the reader comment function. Unlike letters to the editor, these are pretty much real time and uncensored. The result is interesting. Most of these forums (some call them blogs) are populated by groups of resident partisans practicing coordinated attacks on any who would dare voice a contrary opinion.

This, to me, is a challenge. I find it intriguing to try to stay on a polite level of debate while the resident blowhards sling ad hominem, just to see if they will get the hint, set hyperbole aside, and actually try to rationally debate the topic. In a recent exchange I was rewarded with a reasoned retort to my contention that our form of government is a democratic republic.

The question was…

But arn't we a "representative republic," and not a "democratic republic?" For short, we're not a democracy, but a republic.

…and my response was…

An interesting question, and the answer is perhaps a bit confusing. We are both a democracy and a republic, which is why I choose to use the term democratic republic..

If you reference the dictionaries you can find slightly different definitions of democracy and republic, but those references tend to agree that democracy is government of and by the people, exercised either directly or by way of elected representatives.

Republic has dual forms and therefore has two definitions. By one definition it is a form of government in which the highest political office is elected and there is no monarch. The alternate definition is a government where both the highest political office and a body of elected representatives are responsible to the people.

Webster's defines republic as "a form of government in which the sovereign power is widely vested in the people either directly or through elected representatives." That definition, broadly used, would fit Castro’s Cuba, Ahmadinejad’s Iran, or Gbagbo’s Côte d'Ivoire.

The USA is a better fit with the other definition, which combined with the definition of democracy, creates a representative (republican) democracy. Considering the definitions of democracy and the second definition of republic, power is vested in the people.

The word "democracy" is not found in our Constitution, but the first words of that document contain the very democratic statement, "We the people. The word "republic" is sort of mentioned in Article IV, Section 4, where our founders declared that "The United States shall guarantee to every state in this union a republican form of government."

I can understand the right wing insistence that we are a republic rather than a democracy. Over time our country has grown weaker on the democracy end of things, with a greater consolidation of central government power… creating a more republican form of government.

But the word "majority" is found several places in our Constitution, and We the people wield the ultimate power of the vote. Thus, in my mind, we are a democratic republic.

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The reactionary right never seems to tire of scaring itself

The chronic condition known as Bowels in an Uproar.

There is no better diagnosis for the astoundingly hair-raising chain emails perpetually circulating the reactionary right wing world. On the slimmest of evidence, it seems, the boogieman tales are swallowed... hook, line and sinker... and then faithfully forwarded on by the thousands.

Since my work regularly brings me in contact with military and public safety types, and since I own firearms and motorcycles, enjoy the shooting sports and riding, my circle of friends includes more than a few individuals from that side of the political spectrum – including some who take seriously the inevitable exhortation that they should “forward this to everyone you know,”

I find these scary messages in my inbox pretty regularly. 

Today I got a modern revision of an old, really tired, already debunked admonitory that first started its journey around the cybersphere almost four years ago. The reference was to a bill introduced in the 110th Congress by Rep. Bobby Rush (D-IL), titled “Blair Holt's Firearm Licensing and Record of Sale Act of 2007.”

An early version of this particular scare missive was sent to me  by a biker/shooter friend/neighbor about the time the 2007 bill was introduced. This wasn’t the first time my buddy had done such, and asking this fellow to not fill my inbox with drivel does little good… when he gets excited he looses all perspective. At the time I scolded my excitable buddy to not take the mass mail garbage so seriously, and to PLEASE not inflict it on me.

Obviously that did little good, as today’s missive comes from the same excitable boy.

This is yet another of the urban myths that will not die. The original 2007 email was superseded in 2009 when Rep. Rush reintroduced the bill (I blogged about that at the time). None of the scary threats to our Second Amendment rights have materialized, yet to this very day the message continues to find its way into the inboxes of excitable wingers, who, like my little buddy, dutifully forward it on as if it were the newest and greatest socialist assault in the history of gun control.

I’ve come to the conclusion that the right wing is an easily frightened lot… is the same true for the left? If so, why do I not get those emails?

Anyway, in an effort to calm my little buddy we spent some time taking a look at this bill in particular, and similar bills in general. I'd hoped I could perhaps add some rational perspective to the legislative process and get him to understand that just because someone is shouting that the sky is falling, it does not obligate a knee-jerk reaction from him.

To some of the wingnuts, Rep. Rush’s bill is but the iceberg tip of gun control legislation yet to come, and that goose-stepping liberals will soon be waiting just outside our doors for the go-ahead to kick them down, confiscate all of our weapons and send our kids to FEMA reeducation camps.

Some other, more rational individuals, recognize the bill for what it is… a formerly DOA proposal dredged back up from the grave for another stab at success, yet still doomed to the same fate as in 2007. This kind of garbage legislation didn’t work in the 110th Congress... and it won't in the 111th.

There is just no stomach left in Congress for gun control, and for that reason the bill has failed to attract co-sponsors and faired no better this session than in 2007. At that time it died in committee without ever receiving a vote, and it faces the exact same fate today. 

This particular bill, while hailed by the right wing as evidence of leftist, faggot-loving, pinko-commie socialists determined to take our guns, but is really just another of the thousands of pieces of legislation offered up in every Congress, most of which never see the light of day. Some 94% of all introduced bills die in committee. Of the handful that pass, most are inconsequential. Only a comparative few of the bills passed into law are even mildly noteworthy.

So what is the moral of this story? Just because it is introduced does not mean that any given bill has  even the chance of a fart in a windstorm of becoming law. The right has no reason to continue the email fear-mongering... other than to perpetuate the fear they seem to require to ensure their base remains sufficiently motivated. For that reason alone, I'd bet it won't stop.

Donnie Shaw wrote an interesting piece just a few days ago, posted on the Open Congress blog, in which he addresses the scare-mail mania. The Blair Holt firearms bill is featured in the article.

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Blogroll Addition

A new blog has appeared on the scene.

Tao started publishing Radical Perspective just a couple weeks ago, making some astute observations and quickly catching my attention. His brand of punditry, snark and pointed political observation is right up my alley. His few posts so far have attracted some pretty sharp commentary from some equally sharp commentors. The banter is educational.

I don't know who the guy is, but I like what I've read so far. Apparently from Kentucky, and of my generation, the gentleman calling himself Tao is a student and observer of philosophies as disparate as Marx and Ayn Rand, with a sprinkling of Tolstoy and Max Weber.

At first I thought I might re-post some of the stuff here, but in the end couldn't figure out where to start or stop. It makes more sense to just tip my hat and hope y'all will give him a read. You won't be disappointed.

UPDATE: I'll have to qualify my support a bit, as Tao's most recent post regarding the 2nd amendment pushes hard on my own interpretations. He apparently does not support individual gun ownership, which is a position with which I cannot agree. Still, I'm not one to toss a quality thinker based only on a single disagreement.

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On Andrew Wakefield

Pseudoscience

Liz, blog matron at I Speak of Dreams, has posted a really interesting compillation of news reports and blog posts regarding the current state of debate about Andrew Wakefield. The list includes both supporters and detractors, so you can easily seperate the wheat from the chaff.

It is clear to me that Wakefield is a quack responsible for an untold amount of suffering among children.

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Crime & Punishment

SHARP AS A MARBLE is a blog I read often, and sometimes shake my head at the content. While I applaud that he is a staunch defender of individual rights, Robb all too often gets confused about the origin of the threats. Still, on balance, the blog is an enjoyable read.

Friday Robb hit a home run with a post about felons and gun ownership, and his comments regarding the stupidity of the law. The loss of the right to vote due to a felony conviction is just as stupid, but that is another blog post.

Pop over and give Robb’s piece a read, then pop back here and give me a comment.

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Does the rhetoric sound familiar?

To those who are old enough, particularly those who were living in or near Dallas in the fall of 1963, the hate-speech we're hearing from the extremist right wingnuts and teabaggers has familiar tones.

On November 20, 1963, members of the John Birch Society circulated some 5,000 of the now infamous JFK wanted posters on the streets of Dallas.

Two days later, on the morning of the 22nd, a full-page hate and lie-filled advertisement appeared in the city’s largest newspaper, the Dallas Morning News.

The advertisement, paid for by John Birch Society affiliate, the previously unheard of American Fact-Finding Committee, accused the President of responsibility for the imprisonment, starvation, and persecution of 'thousands of Cubans,' claimed he sold food to ‘Communists,’ accused him of letting Attorney General Robert Kennedy ‘go soft on Communists’ and ‘leftists’, and of persecuting ‘loyal Americans who criticize you, your administration, and your leadership.'

Two hours after the President read that advertisement he was dead. There is no known link between the Birchers and the assassination; there certainly is a link between JBS and the hateful rhetoric infecting our political discourse both then and now.

The John Birch Society has a history of extremism, liberal bashing, hate speech, and conspiracy theories. In the almost 50 years since the Kennedy assassination the Birchers have never let up on the rhetoric. Now today the right-wing blog The Hill has included JBS president John F. McManus as one of “the nation’s top political commentators, legislators and intellectuals.”

We’ll never be able to say for certain that the hateful words and actions of the likes of the John Birch Society in the early 60’s had anything to do with the death of a President, but as Chief Justice Earl Warren said in his eulogy delivered two days following the assassination, acts such as JFK’s murder “…are commonly stimulated by forces of hatred and malevolence. ... What a price we pay for this fanaticism. ... If we really love this country, if we truly love justice and mercy, if we fervently want to make this nation better for those who are to follow, we can at least abjure the hatred that consumes people, the false accusations that divide us, and the bitterness that begets violence.”

Today we have the likes of Glenn Beck stoking the flames on hate TV and hate radio, and there are the Michele Bachmans and Joe Wilsons in D.C. pushing their hate-filled agendas in the halls of Congress. In the old days we had Father Coughlin and Joe McCarthy. The hate has always been there, and it will forever be there, but we must not allow it to poison our body politic. Reason must prevail.

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Rags & Mags vs Bits & Bytes

Richard Davis, a political science professor at BYU, has authored the book Typing Politics – the Role of Blogs in American Politics. In the book Davis relates the not-too-surprising results of a survey. A larger percentage of average Americans who read both blogs and print newspapers consider the blogs more accurate and informative than the rags. From another survey of more than 200 political reporters, Davis found that the ink jockeys feel the same as the general public, and that many use blogs for source information.

Davis seems to have ferreted out some interesting trends, too. He says that even the more conservative word-slingers spend a greater amount of time reading, and take more source information from, the liberal blogs... even though there is equal or greater awareness of the conservative blogs.

"...more journalists know about Michelle Malkin than Talking Points. Yet twice as many journalists actually read Talking Points than read Michelle Malkin"

Dinosaur that I am, I still read my newspapers. Withdrawal symptoms occur if I go more than a day without my Fort Worth Startlegram, and I’ll pick up a copy of the Dallas Morning News if I’m ever in their service area. I hate MacPaper, so when I travel I always get out early and find the local rag to peruse over breakfast. But when I'm at home I spend time reading a variety of rags in their cyber versions and I’ll spend way too much time reading from what has grown to be a huge list of news and political blogs.

Below is my list of conservative political blogs, some that I read daily and others I visit less often. This seems to cover the right side of the spectrum rather well, representing libertarian to moderate to wingnut. Does anyone have a recommendation for list additions?

Glenn Reynolds (InstaPundit)

Michelle Malkin and her other site, Hot Air

Andrew Sullivan (Daily Dish)

Pam Geller (Atlas Shrugs)

James Joyner (Outside the Beltway)

Drudge Report

Hugh Hewitt

Gary Becker / Richard Posner

Donald Luskin (The Conspiracy to keep you Poor and Stupid)

Rick Moran (Right Wing Nuthouse) and (American Thinker)

Little Green Footballs

Red State

Dana Pico (Common Sense Political Thought)

Bill Dupray (Patriot Room)

John Cole (Balloon Juice)

Tom Maguire (Just One Minute)

Megan McArdle (Asymmetrical Information)

The Ace of Spades

Conservatism Today

Tigerhawk

LMAO

Cox & Forkum

Bruce McQueen (Q & O)

The Volokh Conspiracy)

John Hawkins (Right Wing News)

John Hinderaker / Scott Johnson / Paul Mirengoff (Powerline)

Urban Conservative

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Wingnuts in Love

Right wing blogger Pamela Geller [Atlas Shrugs] has offered up some really bizarre stuff over the years, and on April 1st, 2009, Geller did it again. In an interview [20 minutes long] with Winger-in-Chief, Michelle Bachman (whom I have written about before), Geller just cannot seem to gush sufficiently in her praise of the Michigan Republican… and Bachmann’s revolutionary, anti-Obama ranting just gets nuttier. Geller’s choice of dates to post this interview seems most appropriate.

What would y’all think of a Palin / Bachmann ticket in 2012?

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Blogroll Addition

Found a new blog that I like, thanks to a post by Misfit. Hat Tip to the good Comrade. My Corner to Vent seems to be right up my alley. Terrant, the author, posts the following:

I do not swear allegiance to any political party. I find that democrats and republican do not represent the average American. The only real difference between the two is that one pretends to actually care about the plight of the little guy.

I do not consider myself to be liberal nor conservative. I believe that both sides have good ideas and bad ideas. I feel that a middle of the road approach is the best. I feel that government should let society and industry advance at its own pace with minimal interference and within the confines of what the Constitution allows. I do believe that everyone should be treated equally by the government. I do not believe that any one group should deserve any special treatment over the others.

I do not tolerate politicians that flat out lie to me or are blatantly hypocritical. I consider partisan politics to be a poison that prevents the best solutions to problems from being truly considered. I believe in pragmatic solutions to problems; not ones driven by an ideology.

Sounds good to me.
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